Parking Eye @ Welcome Break

edited 9 September 2014 at 10:14PM in Parking Tickets, Fines & Parking
19 replies 2K views
PerryHPerryH Forumite
10 Posts
edited 9 September 2014 at 10:14PM in Parking Tickets, Fines & Parking
EDIT 09/09/2014 : Appeal Successful, please scroll to the end for the full final appeal I submitted


I've read everything thoroughly and am ready to appeal but thought I'd double check I was doing it right. Usual story, parked over the 2 hours whilst napping and received the PCN for £100.

I am about to submit this through Parking Eye's online form, followed once it is rejected by an appeal to POPLA:

APPEAL TO PARKING EYE

I would like to appeal against this parking charge notice as there has been no financial loss incurred by your company, the business the car park services nor the landowner. The driver was parked in a car park which has no parking fees for the majority of users and where it does charge those charges are considerably less than the £100 being charged by this notice. I therefore find the charge attributed to this notice excessive and not a genuine pre-estimate of loss flowing from any breach of the parking terms.

I am therefore addressing you to cancel this parking charge notice for the reasons stated above. If you disagree with the reasons stated, I would be grateful if you would send me a POPLA code so that this appeal can be pursued through an independent appeals process




As I said I'm expecting it to be rejected, at which point I submit this appeal to POPLA by post with a proof of postage:

Appeal to POPLA

APPEAL RE: PPC Name CHARGE ******/******,*********
CAR PARK **/**/2014, VEHICLE REG: **** ***

I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1. Neither the parking company nor their client has proved that they have planning consent to charge motorists for any alleged contravention.

2. 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.

3. 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.

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


Here are the detailed appeal points.

1. No right to charge motorists for overstaying

Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put 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.

2. No valid contract with landowner

It is widely known that some contracts between landowner and parking companies 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, I require 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. I require, 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 the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

3. 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

Having since visited the site I believe 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 van can see and read them when deciding to drive in. Any terms displayed anywhere else do not alter the contract which must be shown in full at the entrance. I believe 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. I require 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 I 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 nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

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

The wording on the signs appears to 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 retail revenue at a service station.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.

The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require 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. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot 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.

Furthermore, I attach a letter from Parking Eye in correspondence with another case, that admits that their estimate of cost in each case is actually £53, including operating costs, and this that the charge they are seeking to impose in my case has a considerable element of profit as well as operating costs incorporated. By their own admission, therefore, It can not, be a true pre-estimate of loss

This concludes my appeal.



I'll also attach a copy of the letter linked at: imgur.com/a/vzLDq


Is there anything else I need to add?

I think I will have another one (or even two) of these in the post as I was on a series of journeys last week where I unwittingly did the same before I got home and found the first letter. So I want to get it right!

Many thanks in advance,

PerryH
«1

Replies

  • edited 2 July 2014 at 10:38PM
    Dee140157Dee140157 Forumite
    2.9K Posts
    Part of the Furniture Combo Breaker Mortgage-free Glee!
    ✭✭✭✭
    edited 2 July 2014 at 10:38PM
    Get rid of the words "I would be grateful if...." I understand if you wish to be polite, but not grateful!

    If it was an ANPR car park you need a paragraph on that too.
    Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.
  • PerryHPerryH Forumite
    10 Posts
    Thank you very much Dee, I will add the two points below to the main appeal; do I need to add anything to the initial appeal too or is that part ok? (other than over-politeness)




    5. The parking company has not provided sufficient evidence of parking time or sufficient detail of contravention.

    6. The parking company has failed to provide evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part21 (ANPR)



    5. No evidence of parking time or sufficient detail of contravention

    The parking company is relying on pictures taken of a vehicle at first arrival and then when leaving. These pictures show no evidence of actual parking time or where the car was after driving in, whether it stayed in the car park or left and then returned within the recorded timescale. The postal 'ticket' fails to clarify the issue and so it is a nullity, since it fails to meet the requirements for a Notice to Keeper under the Protection of Freedoms Act 2012.

    The wording from the Notice to Keeper quoted fails to specify precisely which term of the alleged contract was allegedly breached; the Notice therefore fails to comply with the Protection of Freedoms Act 2012, Schedule 4 Clause 9(2)(c) and no keeper liability can arise.

    6. ANPR requirements – part21 of the BPA code of practice

    Parking Eye have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part21 (ANPR). I need POPLA to consider whether the parking company has shown documented evidence of contemporaneous manual checks of the cameras, clocks and related machinery in that particular car park. These maintenance checks are a requirement of section 21 of the Code.

  • Half_wayHalf_way Forumite
    6K Posts
    Ninth Anniversary 1,000 Posts Name Dropper
    ✭✭✭✭
    APPEAL TO WELCOME BREAK-??????
    As Welcome break allow this predatory parking company (PPC) to operate on their land in their car parks, on their behalf, Welcome break are responsible for the parking company's actions.
    you've obviously spent some time in dealing with the issues caused as a direct result of Welcome Breaks actions in allowing their contractors to operate ( and continue to operate) on their land and unless welcome break call off their contractors/agents welcome break yuo may be able to hold welcome break liable for any charges/costs you incur ( including wasted time) as a result of the actions of Parking eye, should they insist on letting it go as far as POPLA and should your POPLA challenge/apeal be successful.
    From the Plain Language Commission:

    "The BPA has surely become one of the most socially dangerous organisations in the UK"
  • Coupon-madCoupon-mad
    98.7K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    ✭✭✭✭✭✭
    As it's an MSA (motorway service area) you can use an 'MSA' POPLA appeal template suitable to these places which has a nice long specific spiel about the signage and the TSRGD2002 rules. It's about statute, not about BPA standards only in any MSA! I am pretty sure there is an MSA example linked in 'how to win at POPLA' but these can also be found by searching this forum for 'MSA TSRSGD' or 'MSA POPLA'. There are loads like it and they always win.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • PerryHPerryH Forumite
    10 Posts
    Thank you both. I have added in the bit below into section 4 to cover MSA specific signage requirements.

    I also notice there's slightly more recent case evidence (ie Beavis) that is being used by some people. Will it matter that this isn't in my appeal - it would be easier not to try and shoehorn it in at this stage but if you think it's important I will do?



    Also, as this was a Motorway Services Area which is specifically designed for drivers to rest, operators of Motorway Services Areas (MSAs) and their agents must comply with the requirements of Government policy. These provisions are reflected in the Traffic Signs Agreements into which they enter with the Highways Agency.
    The Highways Agency, on behalf of the Department for Transport (DfT), published a policy on the provision of roadside facilities on its network. That policy is 'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'.

    ''Signing within roadside facilities
    100. All traffic signs and markings within roadside facilities should conform to the standards laid down in the TSRGD 2002 as amended or replaced from time to time.''

    I require Parking Eye to show proof to the POPLA adjudicator that the DFT/Highways Agency has granted special authorisation for Parking Eye’s 'traffic signs' in this particularMSA, to be exempt from this policy requirement. It will not be enough for Parking Eye to claim that their particular signs placed in this MSA are in Parking Eye’s own opinion, not 'traffic signs' when clearly they can indeed be interpreted as such and - unlike other adverts and signs on site - are not intended to direct pedestrians.

    I put Parking Eye to strict proof to provide evidence of date of erection of all signage and proof of compliance of that signage with the standards laid down in the TSRGD 2002 and with BPA Code of Practice and BSI Standards.

    As Parking Eye are arguing the driver entered into a legal contract with them based ENTIRELY on signage. I put Parking Eye to strict proof to provide POPLA with an unredacted, contemporaneous copy of their evidence that each sign was illuminated for the purpose of 'after dark' reading and to provide mapping of the signage.




    With regards to appealing directly to Welcome Break, everything I've read says this is fruitless. This is the bit that really angers me as I am (was) their customer (PE are just doing the job they're employed to by WB). But life's short, there are plenty of other service stations and there's no way I'm going to court for a few hundred quid of damages when, if you actually think about it, I am in the wrong for accidentally parking too long.
  • Coupon-madCoupon-mad
    98.7K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    ✭✭✭✭✭✭
    I do think the more recent version of the no GPEOL argument are worth using (Beavis, and the quote from Chris Adamson). I would remove this bit and replace it with the newer words about commercial justification/Beavis/Adamson as it means you then pretty much cover all PE arguments.

    [STRIKE]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.[/STRIKE]

    [STRIKE]Furthermore, I attach a letter from Parking Eye in correspondence with another case, that admits that their estimate of cost in each case is actually £53, including operating costs, and this that the charge they are seeking to impose in my case has a considerable element of profit as well as operating costs incorporated. By their own admission, therefore, It can not, be a true pre-estimate of loss.[/STRIKE]
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • PerryHPerryH Forumite
    10 Posts
    Excellent thank you, I have replaced that section with a bit about the Beavis case (new bit in blue):




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

    The wording on the signs appears to 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 retail revenue at a service station.

    The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.

    The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require 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. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot 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.

    The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breachmust be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):

    The British Parking Association Code of Practice uses the word 'MUST':
    "19.5 If the parking charge that the driver 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 you suffer.''

    Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

    ''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

    This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''


  • Coupon-madCoupon-mad
    98.7K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    ✭✭✭✭✭✭
    Yep that's the one!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • arthurp8arthurp8 Forumite
    289 Posts
    Hi PerryH,
    I don't suppose you have your full POPLA appeal do you - I am in a similar position and just about to submit my appeal.

    Also there appear to be 4 tick boxes on the POPLA appeal form - which do you tick?
    Play up Pompey!
  • Jim_AFCBJim_AFCB Forumite
    248 Posts
    Sixth Anniversary
    ✭✭
    arthurp8 wrote: »
    Hi PerryH,
    I don't suppose you have your full POPLA appeal do you - I am in a similar position and just about to submit my appeal.

    Also there appear to be 4 tick boxes on the POPLA appeal form - which do you tick?

    Best to start your own thread for your case (saves confusion and the risk of incorrect advice being given)

    The answer is "all of them, apart from 'stolen' " (unless it really was!)
    Bournemouth - home of the Mighty Cherries
This discussion has been closed.
Latest MSE News and Guides

Tesco launches its first ever...

...checkout-free supermarket store

MSE News

25+ ways to stop scams

Plus what to do if you're a victim

MSE Guides

Beauty Advent calendar round-up

The Body Shop, Holland & Barrett etc

MSE Deals