Parking Eye advice with POPLA please

bye_bye_band_G

Hello to the experts on here, can I ask for a little help?
A family member was let down with expected parking on a night out and with few other options available parked in a YHA car park at 5pm. They paid £10 for 12 hours parking. Of course this ran out at 5am, and the driver is a young and vulnerable person who very sensibly was not going alone in a city centre car park at that time of night to remove the car or buy another ticket. They removed the car at the earliest opportunity the next morning which was 8am, but were photo'd by PE and sent a £100 charge for overstaying.

We appealed to PE, having realised after reading on here that what actually happened was irrelevant. Thankyou for the appeal template which we sent listing GPEOL and the other stuff about signage, contract etc. That's now been rejected and we have the POPLA code, so would appreciate some help.

My first question is that the PE info they sent us about POPLA is that we can only appeal under four grounds - not improperly parked, parking charge exceeded the appropriate amount, vehicle was stolen or I am not liable for the parking charge. The reasons you guys give don't seem to fit any of those categories, which one(s) should we tick?

And second, Coupon-Mad seems to say that GPEOL is not a winning argument if there was a small loss -

"POPLA 'no GPEOL' wording to use if it's a case where there was clearly no initial loss, such as if the driver DID pay/have a permit, or if it's a free car park like a Supermarket one. USE THIS SORT OF WORDING EVERY TIME UNLESS THERE WAS A SMALL LOSS (e.g. if the driver didn't pay for a ticket):"

Nobody else wanted that space between 5am and 8am! But could it be that it might been seen there was a small loss and we have to find another argument?

We haven't started writing the POPLA appeal yet so any advice on our situation would be really helpful, though we will try to do as much as we can ourselves.

Actually, this could all have been avoided if the YHA had been sensible enough not to have tickets expiring in the middle of the night. They shouldn't want the public to be in a potentially dangerous situation. If you get 12 hours parking for £10 why don't they let anyone who enters after noon have overnight parking as well, it wouldn't mean any loss to themselves as they don't get new customers arriving after midnight.

Many thanks.

Dee140157

You tick them all except the stolen one.
You do want appeal on the GPEOL reason as well. Use it all. There was no real loss as no one was likely to turn up at 5 am on the morning! And I assume the car park wasn't full either. So you did not stop someone else paying for a ticket! The driver did pay for a ticket after all.
Just stick to the template.

Redx

forget "what happened" and stick to the legal appeal points , not any "arguments"

just use all of the bullets in the gun at popla, then let the assessor decide what is relevant

da_rule

The PPC have to prove that the entire amount they are seeking to recover satisfies the genuine pre-estimate of loss. If they are seeking £100 but the loss is only £10 then this will not satisfy GPEOL.

POPLA cannot alter the charge being sought, they simply rule on whether the charge, in it's entirety, is lawful or not. If any amount of the charge is not a GPEOL (and therefore a penalty) it is unlawful and therefore unenforceable.

4consumerrights

da_rule wrote: »

If they are seeking £100 but the loss is only £10 then this will not satisfy GPEOL.

The loss is NOT £10 in this case though .....

The OP paid £10 for 12 hours parking which expired at 5am - they left at 8am - therefore a 3 hour shortfall pro-rata of paid parking time.


This is just worth £2.50 potentially to the landowner - however depending on when the YHA opened and the car park not being full it is very likely no loss or deprivation of parking occurred.


To the OP - do a full normal appeal and also stick in a point refuting any commercial justification for managing a car parks. Commercial justification has been ruled in high court decisions where there GPEOL is not considered a necessity - however these are between two parties of equal standing and individually drawn up contracts. This does not apply where car parks are concerned and the recent court case ruling at Cambridge is simply at county court level and does not set a legal precedent as it is not a court of record.

da_rule

4consumerrights wrote: »

The loss is NOT £10 in this case though .....

I was simply using £10 as an example just to make the point, as the OP seemed worried that any loss would undermine the GPEOL argument.

Coupon-mad

Sorry if it was unclear - I only meant 'use this particular paragraph if there was no initial loss' (then I link a Particular paragraph). I don't say 'don't use no GPEOL at all'!

we can only appeal under four grounds - not improperly parked, parking charge exceeded the appropriate amount, vehicle was stolen or I am not liable for the parking charge. The reasons you guys give don't seem to fit any of those categories, which one(s) should we tick?

http://parking-prankster.blogspot.co.uk/2013/05/secret-reasons-you-can-use-in-your.html


HTH

Umkomaas

Can anyone believe that the YHA directed PE to place a 5am deadline on that car park? Why would they?

But of course the more outlandish and unachievable a deadline is, the more likely there is to be a contravention by those who don't get up at silly-o'clock (lazy burgers ). So to whose advantage does this play out?

SevenTowers

Sounds like a story Pranky may be interested in for his blog

bye_bye_band_G

So, here is our drafted POPLA appeal. I know it's very long, does that matter? The trouble is, I keep finding bits I like on other people's appeals and including them. If we send this perhaps the POPLA adjudicator will think there must be something in here of merit, and yawn and allow it?!

POPLA Appeal.
APPEAL RE PARKING EYE CHARGE xxxxxx/xxxxxx.
CAR PARK YHA xxxxxxx xx/05/2014. VEHICLE REG xxxx xxx.

1. The amount demanded is not a Genuine Pre-estimate of loss.

2. Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.

3. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

4. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.

Here are the detailed appeal points.

1. The amount demanded is not a Genuine Pre-estimate of loss

The wording on the signs indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of custom at the YHA.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing this parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. The registered keeper requires the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. The charges demanded by the operator as "genuine loss" must be those allegedly incurred at the point of issuing the charge, and can not include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.
Equally, as the claim is being made for estimated losses at the time of the alleged contravention, then any costs included by the Operator that relate to accumulated amounts post that date are obviously invalid. Should such cost heads be included in the claim, as well as any profit element, then POPLA must reject the charge.
It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

I attach the section of the letter from Parking Eye to the Registered Keeper, that states that their estimate of cost in each case is actually £53, including operating costs, and it follows that the charge they are seeking to impose in this case has a considerable element of profit as well as operating costs incorporated. By their own admission, therefore, it cannot, be a true pre-estimate of loss. But even this is an over estimate.

ParkingEye’s true pre-estimate of loss can be calculated as follows. The accounts show that the entire cost of running the business is £9,439,343 (2012) and £12,637,764 (2013). Although not all these costs are allowable against parking charges, this can be used as a useful upper limit. The number of keeper requests made to the DVLA (Appendix N) during these periods are 629,181 and 720,090. The maximum cost per ticket issued is therefore total cost/number of tickets, or £15 (2012) and £17 (2013). Not all keeper requests will result in a ticket issued. An allowance of 10% is generous. However this only raises the maximum cost to around £17 and £19. This is a maximum. Many costs to the company will not be allowable heads of loss. For instance, the entire ParkingEye infrastructure is used to provide management information to customers as well as for enforcement purposes, and costs must therefore be apportioned. In addition ParkingEye issues many tickets incorrectly which they are forced to cancel (over 55% on appeal) and these costs cannot be passed on as they do not result from breach of contract. ParkingEye also run pay and display machines to generate profit for landowners, and this is not enforcement-related but a normal cost of doing business.

Appendix O contains the minutes of the British Parking Association where parking charge levels were decided, showing that there was no consideration whatsoever given to pre-estimate of loss, and that at least one factor was to set the charges the same as council penalties. The minutes also show there is no financial basis for the 40% discount but that it is needed to ‘prevent frivolous appeals. Any charge set to deter is a penalty. A charge set to the level of a penalty is a penalty.



In this particular case the charge is for night time parking from 5am to 8am after a £10 ticket for 12 hours parking had expired. The car park was not full and even in the unlikely event of another customer arriving to park in that period, they would have had no problem in parking in another space. There would not have been any financial loss at all to either Parking Eye or the YHA purely based on a car overstaying for that time in the very early morning.


2. No right to charge motorists for overstaying

Planning consent is required for car parks which would have been granted on the grounds that the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for these variations. The registered keeper has no evidence that planning consent was obtained for this change and the registered keeper puts the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.
Planning consent for ANPR cameras is also required where used – and the registered keeper requests evidence of this in addition to planning consent for the relevant parking times.


3. No valid contract with landowner

It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, the registered keeper requires the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. The registered keeper requires, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read and understood the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company


4. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

The registered keeper believes the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. The registered keeper believes the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. The registered keeper requires the operator to provide photographic evidence that proves otherwise.
As a POPLA assessor has said previously in an adjudication, “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that the registered keeper and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the amount of £10 for 12 hours due in a machine on site.

The idea that any driver would accept these terms knowingly is beyond credibility.
In particular, this alleged breach of terms supposedly took place at 5am. There is insufficient lighting to notice and read the signs or terms when it is dark.

Finally, the registered keeper would have liked to include the circumstances that led to the overstay as relevant here – a ticket expiring at 5am in a city car park could have led to dangerous consequences if the young and vulnerable driver had attempted to remove the car or buy another ticket on their own in the middle of the night. Sensibly, the car was removed at 8am, as soon as was practical the next morning, with no inconvenience or loss to the YHA. But Parking Eye don’t appear interested in real mitigating circumstances when they believe they have a chance of making money, so the appeal is based on the above points instead.

da_rule

Couple of things, overall it's very good.

The second to last paragraph needs to be reworded slightly. It doesn't matter that it was dark when the breach occurred, as the contract (if there was one) was entered into when the driver entered the car park. If it was dark when the driver entered the car park and the signs are not adequately lit then this would make a better point.

The last paragraph comes across as being a rant and achieves nothing, again POPLA = not interested in mitigation or listening to people 'slag off' PPC's. I would take it out as it detracts from an otherwise very good appeal.