Parking Eye @ Welcome Break

Coupon-mad

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?

The top thread on this forum board tells you 'How to win at POPLA' in a link with examples to proof read and amend to suit. Use the 'forum jump' (bottom right of this page) or click where my signature shows you to click up the top, to see current threads including the top thread for newbies to 'read these FAQs first'.

PerryH

Sorry, only just checked this, my whole appeal is here in chunks but I'll copy the whole thing out if it's successful.

Got my rejections from Parkingeye now and have submitted the appeals above so will let you know in a few weeks I suppose.

PerryH

Success! Both tickets cancelled, many thanks to all who helped out.

Response from POPLA

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The Operator issued parking charge notice number 521244/389088 arising out of a presence on private land, of a vehicle with registration mark XX##XXX.

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has

determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.

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.

PerryH

ParkingEye Response

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Dear Sir / Madam,

We refer to the Parking Charge incurred on # June 2014 at ##:##:##, at Welcome Break Fleet (North) car park.

We can confirm that this Charge has been cancelled and there is no outstanding payment due on this account.

Kind Regards,

ParkingEye Team

PerryH

...and for anyone interested in pretty much lifting an up to date, successful appeal:

My FULL APPEAL

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APPEAL RE: Parkingeye Ltd
CHARGE: ######/######,##########
CAR PARK: Welcome Break Fleet (North)
DATE: ##/##/2014
VEHICLE REG: XX## XXX

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.

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)

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.
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 particular MSA, 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.

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 breach must 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.''

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.

This concludes my appeal.

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PerryH

Out of interest, can anyone tell me which of my grounds it was successful upon, if any?

Does them 'not producing evidence' mean that my point 5. about them not being able to prove my contravention was upheld? ...or that they simply rolled over and didn't fight it?

Thanks,

PerryH

Umkomaas

PerryH wrote: »

Out of interest, can anyone tell me which of my grounds it was successful upon, if any?

Does them 'not producing evidence' mean that my point 5. about them not being able to prove my contravention was upheld? ...or that they simply rolled over and didn't fight it?

Thanks,

PerryH

None I'm afraid. The fact that PE did not contest this meant a default win for you; POPLA would have been unlikely to have considered any of your appeal points until the PE response was received.

This has been PE's MO in response to well researched and written appeals (especially those receiving forum assistance) for the past few months.

Nonetheless, a win is a win, relax now and get on with life without this rubbish hanging over you.

Northlakes

I will leave it up to the experts on this forum but it is clear to me that given the correct appeal PE have given up contesting well worded appeals. They know they can't win and are looking for easier targets.


They may be getting the message that their days are numbered both from retailers, MSE, Pepipoo and the Courts. Come 1st October they may be on the defensive as a whole host of claims will befall them.


I wonder if the owners of PE, Capita Plc know what a can of worms they bought?

PerryH

Thank you both, yes I suspected they had not contested.