PCN - first time advice please

Redx

doesnt look anywhere near good enough to me

read this thread https://forums.moneysavingexpert.com/discussion/4992126

then check the PE popla appeal in the link I gave in post #2 , check it side by side with your appeal above, note the difference ?

so good first attempt ? - yes

must try harder ? - yes

is the appeal in the link I gave much better when dealing with PE ? - I leave you to decide !! , LOL

Coupon-mad

You have the right idea but have let them off the hook on too many points IMHO. See post #2 here:

https://forums.moneysavingexpert.com/discussion/4991100

and read the NEWBIES sticky thread post #3 and click on 'How to win at POPLA'.

Staarman

Thanks all, point taken. So i have used the template suggested by Coupon Mad, and amended it to suit the circumstance, ie it was daylight and not pay and display etc. Let me know what you think

Re:ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:
I am theregistered keeper and I wish to appeal a recent parking charge from ParkingEye.I submit the points below to show that I am not liable for the parking charge:
1) No genuinepre-estimate of loss
2) Nostanding or authority to pursue charges nor form contracts with drivers
3) The signage was not clearly visible sothere was no valid contract formed
4) The ANPR system is unreliable and neithersynchronised nor accurate

1) No genuinepre-estimate of loss

This car park,according to the notice I received from ParkingEye, is free for up to 2 hours.

The charge incurredis a penalty and not a genuine pre-estimate of loss'. The £100 charge asked forfar exceeds the cost to the landowner who would have received £0.00 from anyvehicles parked as the car park is free to use for up to 2 hours according tothe PCN notice.

In the appealParking Eye did not address this issue, and has not stated why they feel a £100charge is an appropriate pre-estimate of loss

I believeParkingEye should submit a breakdown of how this sum was calculated prior tothe parking event, as being capable of directly flowing from a minor allegedbreach.
TheParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and assuch, the landowner/occupier (not their agent) can only pursue liquidateddamages directly flowing from the parking event. This might be, for example, areasonable sum based purely upon the alleged lost parking revenue, or even lossof retail revenue at a shopping centre if another car was prevented fromparking. However, this is not the case because the occupants of the car recallthat the car park was virtually empty on early morning arrival, in fact most ofthe larger retail units were not yet open at that time. The car park was still and only half fullwhen the driver left, believing the parking to be free while using thesurrounding shops on the estate.
The Operatorcannot reasonably claim a broad percentage of their entire business runningcosts as I believe they operate various different arrangements, some where theypay a landowner a huge amount akin to a 'fishing licence' to catch motoristsand some where they have pay and display, and others which are free car parks.Given that ParkingEye charge the same lump sum of £100 for a 50 minute overstayas they would for 3 hours, and the same fixed charge applies to any allegedcontravention (whether serious/damaging or trifling), it is clear there hasbeen no regard paid to establishing that this charge is a genuine pre-estimateof loss caused by this incident in this car park.
The DfTGuidance and the BPA Code of Practice require that a parking charge for analleged breach must be an estimate of losses flowing from the incident.ParkingEye cannot change this requirement so they have no option but to showPOPLA their genuine pre-estimate of loss for this charge, not a subsequently derived'commercial justification' statement, since this would not be a pre-estimate.
The BritishParking Association Code of Practice uses the word 'MUST':

"19.5 If the parking charge that thedriver is being asked to pay is for a breach of contract or act of trespass,this charge must be based on the genuine pre-estimate of loss that yousuffer.''
Neither isthis charge 'commercially justified'. In answer to that proposition from a PPCwhich had mentions the ParkingEye v Beavis small claims decision (now beingtaken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamsonhas stated in June 2014 that:
''In eachcase that I have seen from the higher courts, it is made clear that a chargecannot be commercially justified where the dominant purpose of the charge is todeter the other party from breach. This is most clearly stated in LordsvaleFinance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures& Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not bestruck down as a penalty, “if the increase could in the circumstances beexplained as commercially justifiable, provided always that its dominantpurpose was not to deter the other party from breach”.
This supportsthe principle that the aim of damages is to be compensatory, beginning with theidea that the aim is to put the parties in the position they would have been inhad the contract been performed. It also seems that courts have been unwillingto allow clauses designed to deter breach as this undermines the binding natureof the initial promise made. Whilst the courts have reasonably moved away froma strict interpretation of what constitutes a genuine pre-estimate of loss,recognising that in complex commercial situations an accurate pre-estimate willnot always be possible, nevertheless it remains that a charge for damages mustbe compensatory in nature rather than punitive.''
2) Nostanding or authority to neither pursue charges nor form contracts with drivers
I believethat this Operator has no proprietary interest in the land, so they have nostanding to make contracts with drivers in their own right, or to pursuecharges for breach in their own name. In the absence of such title, ParkingEyemust have assignment of rights from the landowner to pursue charges for breachin their own right, including at court level. This has not been produced by theoperator in their rejection statement so I have no proof that such a documentis in existence. I contend that ParkingEye merely hold a bare licence to supplyand maintain (non compliant) signs and to post out 'tickets' as a deterrent. Acommercial site agent for the true landholder has no automatic standing orauthority in their own right which would meet the strict requirements ofsection 7 of the BPA Code of Practice.
I thereforeput ParkingEye to strict proof to provide POPLA and myself with an un-redacted,contemporaneous copy of the contract between ParkingEye and the landowner. Thisis required so that POPLA and myself can check that it allows this Operator tomake contracts with drivers themselves and provides them with full authority topursue charges, including a right to pursue them in court in their own name.Please note that a witness statement to the effect that a contract is in placewill not be sufficient to provide sufficient detail of the contract terms (suchas revenue sharing, genuine intentions of these restrictions and charges, setamounts to charge for each stated contravention, etc.).
3) The signage was not clear to any of theoccupants of the car so there was no valid contract formed between ParkingEyeand the driver
Unreadablesignage breaches Appendix B of the BPA Code of Practice which states that termson entrance signs must be clearly readable without a driver having to turn awayfrom the road ahead. A Notice is notimported into the contract unless brought home so prominently that the party'must' have known of it and agreed terms beforehand. Nothing about this operator's onerousinflated 'parking charges' was sufficiently prominent and it is clear that therequirements for forming a contract (i.e. consideration flowing between the twoparties, offer, acceptance and fairness and transparency of terms offered ingood faith) were not satisfied.
4) The ANPRsystem is unreliable and neither synchronised nor accurate
IfParkingEye's ANPR records are completely reliable (which I contest) then thisOperator claims the car was parked for around 50 minutes more than the timepaid for. Their evidence shows photos of the cardriving in and out which does not discount the possibility of a double visitthat evening. The exit photo is not evidence of 'parking time' at all and hasnot been shown to be synchronised to the pay and display machine clock nor evento relate to the same parking event that evening.
This Operatoris obliged to ensure their ANPR equipment is maintained as described inparagraph 21.3 of the BPA Code of Practice and to have signs stating how thedata will be stored/used. I say that Parking Eye have failed to clearly informdrivers about the cameras and what the data will be used for and how it will beused and stored. If there was such a sign at all then it was not prominent, sincethe driver or other occupants did not see it. I have also seen no evidence thatthey have complied with the other requirements in that section of the code interms of ANPR logs and maintenance and I put this Operator to strict proof offull ANPR compliance.
In addition Iquestion the entire reliability of the system. I require that ParkingEyepresent records as to the dates and times of when the cameras at this car parkwere checked, adjusted, calibrated, and synchronised with the timer whichstamps the photos and generally maintained to ensure the accuracy of the datesand times of any ANPR images. Proof must also be supplied as to who carried outthis calibration and their qualification to do so and records of frequency ofcalibration. This is important because the entirety of the charge is founded ontwo images purporting to show my vehicle entering and exiting at specifictimes. It is vital that this Operator must produce evidence in response andexplain to POPLA how their system differs (if at all) from the flawed ANPRsystem which was wholly responsible for the court loss recently in ParkingEye vFox-Jones on 8 Nov 2013. That case was dismissed when the judge said theevidence from ParkingEye was fundamentally flawed because the synchronisationof the camera pictures with the timer had been called into question and theoperator could not rebut the point.
So, inaddition to showing their maintenance records, I require ParkingEye to showevidence to rebut the following assertion. I suggest that in the case of myvehicle being in this car park, a local camera took the image but a remoteserver added the time stamp. As the two may not have a common "timesynchronisation system", there is no proof that the time stamp added isactually the exact time of the image. Hence without a synchronised time stamp andproof of accuracy there is no evidence that the image is ever time stamped withan accurate time. Therefore I contend that this ANPR "evidence" fromthe cameras in this car park is just as unreliable and unsynchronised as theevidence in the Fox-Jones case. As their whole charge rests upon two timedphotos,
I thereforeplease request that my appeal is allowed.
Yoursfaithfully,

Coupon-mad

That is just the job!

bizzle-dip

Hi guys

Having trawled through many of these helpful posts and overly studied the Newbies thread I am unsure if I've come across a story quite like mine so am full of questions and wondered where I post the brief? I am not even familiar with posting on forums I'm a reader normally so I am sorry if I'm doing the not-done thing by posting on this thread....do direct me away if so!

hope someone can point me in the right direction? Many thanks

Redx

bizzle-dip wrote: »

Hi guys

Having trawled through many of these helpful posts and overly studied the Newbies thread I am unsure if I've come across a story quite like mine so am full of questions and wondered where I post the brief? I am not even familiar with posting on forums I'm a reader normally so I am sorry if I'm doing the not-done thing by posting on this thread....do direct me away if so!

hope someone can point me in the right direction? Many thanks

use the blue NEW THREAD button on the main forum , just next to the green banner

Coupon-mad

bizzle-dip wrote: »

Hi guys

Having trawled through many of these helpful posts and overly studied the Newbies thread I am unsure if I've come across a story quite like mine so am full of questions and wondered where I post the brief? I am not even familiar with posting on forums I'm a reader normally so I am sorry if I'm doing the not-done thing by posting on this thread....do direct me away if so!

hope someone can point me in the right direction? Many thanks

See my signature for where to click ONE CLICK above, to get 'home' to page one!

Staarman

Hi All,

Just recieved the following from POPLA:
"The Assessor has considered the evidence of both parties and has determined that the appeal be
[FONT=Century Gothic,Bold]allowed."[/FONT]

Great news, and thanks for all your help.
:beer:
[FONT=Century Gothic,Bold][/FONT][FONT=Century Gothic,Bold][/FONT]

Umkomaas

Well done. Could you tell us on what grounds the appeal was allowed - it will help us to help others.

Staarman

Hi All
The reason given is:
"Reasons for the Assessor’s Determination:
It is the Appellant’s case that the parking charge notice was issued
incorrectly.
The Operator has not produced a copy of the parking charge notice, nor any
evidence to show a breach of the conditions of parking occurred, nor any
evidence that shows what the conditions of parking, in fact, were.
Accordingly I have no option but to allow the appeal."