We’d like to remind Forumites to please avoid political debate on the Forum.
This is to keep it a safe and useful space for MoneySaving discussions. Threads that are – or become – political in nature may be removed in line with the Forum’s rules. Thank you for your understanding.
IMPORTANT: Please make sure your posts do not contain any personally identifiable information (both your own and that of others). When uploading images, please take care that you have redacted all personal information including number plates, reference numbers and QR codes (which may reveal vehicle information when scanned).
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!
POPLA appeal letter
denk15
Posts: 43 Forumite
Hello
First just want to say thanks for the newbie thread on these PCN's. I was going to ignore mine so thanks for taking the time to write all this advice.
Now I'm at the POPLA stage and have finished writing my appeal and was hoping someone could just skim over it to see if I have missed anything or need to add anything? Would be much appreciated.
It is pretty much the same as one written by danny27 with a few changes to reflect my personal circumstances. The company in question is Parkingeye.
Here is my appeal:
POPLA Verification Code:
Vehicle Registration:
Parking Company:
PCN Ref:
Car Park:
Alleged Contravention Date and Time:
Date of Notice:
Parking Charge Amount:
Dear POPLA assessor,
I'm the registered keeper of the vehicle above and I am appealing against the parking charge above, I believe I am not liable for the parking charge on the grounds stated below, I would ask that all points are taken into consideration.
1. Non genuine pre-estimate of loss
2. No contract between driver/Inadequate signage
3. Flawed contract with landowner/Authority to issue PCN's
4. Unlawful Penalty Charge
5. ANPR accuracy
6. ANPR usage
7. Business rates
8. Unreasonable/Unfair Terms
9. Proof of planning consent for 1 hour parking allowed and ANPR system
1. Non genuine pre-estimate of loss - The Amount of (Amount) demanded by ParkingEye Ltd is not a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a Supermarket. As this is a free car park and the car park was at less than 50% capacity at the time there can be no losses incurred from onsite parking charges or retail revenue. I request ParkingEye Ltd to provide a full breakdown of how these costs are calculated, all these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the amount demanded of (Amount).
As in previous cases the parking company has included day to day running costs of the business (for example Wages, Uniforms, Signage erection, Installation of ANPR cameras, Office Costs, Maintenance Costs) these would of occurred had there been a breach or not and therefore may not be included in this pre-estimate of loss.
Given that ParkingEye Ltd charge the same lump sum for a 15 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.
No doubt ParkingEye Ltd. will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye Ltd. car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.'' My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.
Nor is the charge 'commercially justified'. If ParkingEye cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law.
2. No contract between driver/Inadequate signage - Following the receipt of the charge, I have personally visited the site in question, and the signage at this car park especially at the entrance is inadequate for numerous reasons. The signage at entrance of the car park has no lighting and doesn't have a reflective background which makes it possible for drivers to enter the car park without seeing the signs thus no contract can be formed between the driver and ParkingEye. Also, the entrance to the car park (Where the sign is located) is next to the entrance to the building, therefore the driver’s attention is drawn to the flow of pedestrians and away from the sign. The fact the sign is unlit makes it difficult to read in dark conditions or during adverse weather (Such as were the conditions on the day in question). All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering especially during adverse weather conditions, such as when my vehicle was parked.
Under Appendix B Entrance signs of the BPA Code of Practice it states 'Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.'
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 Assessor 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. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
3. Flawed contract with landowner/Authority to issue PCN's - ParkingEye do not own this car park and are merely agents of the landowner or legal occupier. In their notice and rejection letters ParkingEye have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I put ParkingEye to strict proof to POPLA that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. I demand ParkingEye produce to POPLA the contemporaneous and unredacted contract between the landowner and the ParkingEye.
In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land.This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking Operator has no standing to bring the claim in their own name. My case is the same.
If ParkingEye produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that ParkingEye witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest ParkingEye don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma andGardam.
The BPA code of practice contains the following:
7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.
4. Unlawful Penalty Charge - Since there is no demonstrable loss or damage yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. ParkingEye Ltd. could state the letter as an invoice or request for monies, yet they choose to word it as a 'Charge Notice' in an attempt for it to be deemed as an official parking fine such as the ones issued by Police and local authorities.
5. ANPR accuracy - Under paragraph 21.3 of the BPA Code of Practice, it requires parking companies to make sure ANPR equipment is maintained and in correct working order. I require ParkingEye to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important as the parking charge issued is founded entirety on 2 photos of my vehicle entering the car park and leaving the car park at specific times. It is vital that parking eye produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Joneson 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the Operator could not rebut the point.
So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary.
6. ANPR usage - Under paragraph 21.1 of the BPA Code of Practice it states 'You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for'
7. Business rates - As the car park is being used for the purpose of running a business by ParkingEye, which is entirely separate from any other business the car park services, and generates revenue and profit for ParkingEye, I do not believe that ParkingEye has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.
I put ParkingEye to strict proof that they have so registered the business they are operating at (Car Park Name) car park with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.
8. Unreasonable/Unfair Terms - The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.
An unlit sign of terms placed in a high pedestrian traffic area, is far from 'transparent'.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.
9. Proof of planning consent for 1 hour parking allowed and ANPR system - It as been known that some parking companies to not have the necessary planning permissions/consent from the local authorities for the parking time limit and installation of ANPR cameras. SoI put ParkingEye to strict proof to provide evidence that they have the necessary planning permissions/consent from the local authorities to operate this car park on a 1 hour time limit and for the installation of the ANPR cameras that are used on this site.
This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if ParkingEye fail to address and provide the necessary evidence as requested in the points highlighted above.
Yours Faithfully,
Thank you in advance
First just want to say thanks for the newbie thread on these PCN's. I was going to ignore mine so thanks for taking the time to write all this advice.
Now I'm at the POPLA stage and have finished writing my appeal and was hoping someone could just skim over it to see if I have missed anything or need to add anything? Would be much appreciated.
It is pretty much the same as one written by danny27 with a few changes to reflect my personal circumstances. The company in question is Parkingeye.
Here is my appeal:
POPLA Verification Code:
Vehicle Registration:
Parking Company:
PCN Ref:
Car Park:
Alleged Contravention Date and Time:
Date of Notice:
Parking Charge Amount:
Dear POPLA assessor,
I'm the registered keeper of the vehicle above and I am appealing against the parking charge above, I believe I am not liable for the parking charge on the grounds stated below, I would ask that all points are taken into consideration.
1. Non genuine pre-estimate of loss
2. No contract between driver/Inadequate signage
3. Flawed contract with landowner/Authority to issue PCN's
4. Unlawful Penalty Charge
5. ANPR accuracy
6. ANPR usage
7. Business rates
8. Unreasonable/Unfair Terms
9. Proof of planning consent for 1 hour parking allowed and ANPR system
1. Non genuine pre-estimate of loss - The Amount of (Amount) demanded by ParkingEye Ltd is not a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a Supermarket. As this is a free car park and the car park was at less than 50% capacity at the time there can be no losses incurred from onsite parking charges or retail revenue. I request ParkingEye Ltd to provide a full breakdown of how these costs are calculated, all these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the amount demanded of (Amount).
As in previous cases the parking company has included day to day running costs of the business (for example Wages, Uniforms, Signage erection, Installation of ANPR cameras, Office Costs, Maintenance Costs) these would of occurred had there been a breach or not and therefore may not be included in this pre-estimate of loss.
Given that ParkingEye Ltd charge the same lump sum for a 15 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.
No doubt ParkingEye Ltd. will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye Ltd. car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.'' My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.
Nor is the charge 'commercially justified'. If ParkingEye cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law.
2. No contract between driver/Inadequate signage - Following the receipt of the charge, I have personally visited the site in question, and the signage at this car park especially at the entrance is inadequate for numerous reasons. The signage at entrance of the car park has no lighting and doesn't have a reflective background which makes it possible for drivers to enter the car park without seeing the signs thus no contract can be formed between the driver and ParkingEye. Also, the entrance to the car park (Where the sign is located) is next to the entrance to the building, therefore the driver’s attention is drawn to the flow of pedestrians and away from the sign. The fact the sign is unlit makes it difficult to read in dark conditions or during adverse weather (Such as were the conditions on the day in question). All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering especially during adverse weather conditions, such as when my vehicle was parked.
Under Appendix B Entrance signs of the BPA Code of Practice it states 'Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.'
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 Assessor 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. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
3. Flawed contract with landowner/Authority to issue PCN's - ParkingEye do not own this car park and are merely agents of the landowner or legal occupier. In their notice and rejection letters ParkingEye have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I put ParkingEye to strict proof to POPLA that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. I demand ParkingEye produce to POPLA the contemporaneous and unredacted contract between the landowner and the ParkingEye.
In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land.This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking Operator has no standing to bring the claim in their own name. My case is the same.
If ParkingEye produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that ParkingEye witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest ParkingEye don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma andGardam.
The BPA code of practice contains the following:
7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.
4. Unlawful Penalty Charge - Since there is no demonstrable loss or damage yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. ParkingEye Ltd. could state the letter as an invoice or request for monies, yet they choose to word it as a 'Charge Notice' in an attempt for it to be deemed as an official parking fine such as the ones issued by Police and local authorities.
5. ANPR accuracy - Under paragraph 21.3 of the BPA Code of Practice, it requires parking companies to make sure ANPR equipment is maintained and in correct working order. I require ParkingEye to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important as the parking charge issued is founded entirety on 2 photos of my vehicle entering the car park and leaving the car park at specific times. It is vital that parking eye produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Joneson 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the Operator could not rebut the point.
So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary.
6. ANPR usage - Under paragraph 21.1 of the BPA Code of Practice it states 'You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for'
7. Business rates - As the car park is being used for the purpose of running a business by ParkingEye, which is entirely separate from any other business the car park services, and generates revenue and profit for ParkingEye, I do not believe that ParkingEye has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.
I put ParkingEye to strict proof that they have so registered the business they are operating at (Car Park Name) car park with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.
8. Unreasonable/Unfair Terms - The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.
An unlit sign of terms placed in a high pedestrian traffic area, is far from 'transparent'.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.
9. Proof of planning consent for 1 hour parking allowed and ANPR system - It as been known that some parking companies to not have the necessary planning permissions/consent from the local authorities for the parking time limit and installation of ANPR cameras. SoI put ParkingEye to strict proof to provide evidence that they have the necessary planning permissions/consent from the local authorities to operate this car park on a 1 hour time limit and for the installation of the ANPR cameras that are used on this site.
This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if ParkingEye fail to address and provide the necessary evidence as requested in the points highlighted above.
Yours Faithfully,
Thank you in advance
0
Comments
-
Well done for getting this far by yourself.
However this is an older template you have used, with some areas no longer covered in appeals eg business rates.
Suggest you look at this one instead.
https://forums.moneysavingexpert.com/discussion/4995312
And adapt accordingly.
You can still use some of your own wording you have put into this appeal to make it specific to you. Otherwise a fab effort!
Please note I am off on holiday I half an hour so have only skim read appeal!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.0 -
Thank you for taking the time to read and reply.
Thanks for pointing me to a newer template, looks like the main points are pretty much the same, So I'll just reword some things and take out the other points such as business rates
Thanks again0 -
The newer one is much stronger re 'no GPEOL' the point about loss. Make sure yours is like the new version in that respect so it mentions the Beavis Court of Appeal case and Chris Adamson's words about 'commercial justification'.
Glad we stopped you ignoring this seeing as ParkingEye sue people, issuing around 10,000 small claims since 2013. A very small % ended up in a hearing of course but lots of people just paid up at nearly £200 a pop, and you have avoided that!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thank you for the advice
I have done another appeal using the newer template, the circumstances were quite different so I've changed a few things, hopefully someone wont mind giving it the once over again :-)
I have in there the Beavis case and the words of Chris Adamson (Which is good since PE quoted this case in their appeal rejection letter)
Here it is:
Re: ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:
I am the registered 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 genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) The signage was not readable in the conditions so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate
1) No genuine pre-estimate of loss
This is a free car park for those who register their details on a terminal. The only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £0.00.
In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated over and above £1.50, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.
The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was mostly empty on arrival and almost empty when the driver left.
The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.
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.''
2) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that ParkingEye merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.
I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue 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 place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). In any case, ParkingEye's witness statements have been exposed as photocopy templates from clients who may well have no knowledge of any individual parking event and the signatory may never even have seen the contract.
3) The signage was not readable in the conditions so there was no valid contract formed between ParkingEye and the driver
Given that the entrance road from which the car park is accessed falls into the 15mph approach speed in accordance with the BPA CoP Appendix B (June 2013), the lack of a clear indication of charges being applicable to a ‘Reasonable Person’ driving past the sign is insufficient to form any contract.
Following the receipt of the charge, I have personally visited the site in question, and the signage at this car park especially at the entrance is inadequate for numerous reasons. The signage at the entrance of the car park has no lighting and doesn't have a reflective background which makes it possible for drivers to enter the car park without seeing the signs thus no contract can be formed between the driver and ParkingEye. Also, the entrance to the car park (Where the sign is located) is next to the entrance to the building, therefore the driver’s attention is drawn to the flow of pedestrians and away from the sign.
The only signs are up on poles (away from the direction the driver’s eye will naturally fall). Any upright signs were shrouded in darkness (Due to weather conditions) and were not seen by the occupants of the car.
I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them: This mechanism also is believed to be deliberate.
Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight on a sunny day or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography.
Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit - and it can be seen from ParkingEye's own photos of a numberplate in the rain, that the entrance (must be clear) was in fact very dim. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. The driver knew of no charges, and it must be obvious that any reasonable person, knowing the terms, would not accept them and pay £70 in lieu of entering registration details. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.
4) The ANPR system is unreliable and neither synchronised nor accurate
If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 1 hour and 2 minutes. And yet their evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic. The exit photo is not evidence of 'parking time' at all and has not been shown to relate to the same parking event that evening.
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. It was dark and if there was such a sign at all then it was neither lit nor prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.
In addition I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary and to show how these camera timings are synchronised with the pay and display machine.
I request that my appeal is allowed.
Yours faithfully,
I have tried to mention something about the fact the signs could not have been noticed by the driver because no reasonable person would agree to pay £70 instead of just entering their car reg on a terminal, but not sure if I have worded it clearly enough.
Thank you0 -
It looks fine, submit it online to POPLA in the appeal box, ticking 3 out of 4 boxes for appeal reasons (just not the stolen car one of course). No need for 'evidence'.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Just an update
I won the popla appeal, and it looks like parkingeye didn't bother to fight it at all
Thank you for all your help!0 -
Just an update
I won the popla appeal, and it looks like parkingeye didn't bother to fight it at all
Thank you for all your help!
well done (they never do nowadays as they no its pointless)
please post the verdict and ppc and assessor in here for posterity
thanks
https://forums.moneysavingexpert.com/discussion/44883370
This discussion has been closed.
Confirm your email address to Create Threads and Reply
Categories
- All Categories
- 352.2K Banking & Borrowing
- 253.6K Reduce Debt & Boost Income
- 454.3K Spending & Discounts
- 245.2K Work, Benefits & Business
- 600.9K Mortgages, Homes & Bills
- 177.5K Life & Family
- 259.1K Travel & Transport
- 1.5M Hobbies & Leisure
- 16K Discuss & Feedback
- 37.7K Read-Only Boards