Proof read POPLA appeal - ParkingEye Leisure World Southampton

denniswise9

Hi, this is my first post as a registered user but wanted to say a massive thanks to everyone who has contributed to this gold mine of information on parking fines.

I got a PCN through the post from ParkingEye a couple of weeks ago for Leisure World in Southampton. I didn't know it had suddenly become a paid car park as traditionally has always been free...anyway I appealed against it as the registered keeper of the car, using the guidelines on here and as expected it was rejected.

Have used some information from other users who have fought these charges at Leisure World and Town Quay car parks and taken a fair bit from their POPLA appeals and made some slight changes here and there for my case so was looking for someone to have a read and advise if there is anything I need to add/remove before I send it off.

Many thanks in advance.



POPLA appeal:

Dear POPLA Assessor

POPLA Verification Ref: XXXXXXXXX

I am the registered keeper of Vehicle XXXX XXX and I wish to appeal a recent parking charge from ParkingEye whilst at the Leisure World CarPark in Southampton.

I have shown below a list of points as to why I am not liable for the charge:

1) The speculative parking invoice that was sent is not a genuine pre-estimate of loss.

2) ParkingEye do not have the standing and authority to pursue charges or to form contracts with drivers

3) Flawed contract with the landowner

4) The signage was not compliant with the BPA Code of Practice

5) ANPR Accuracy and breach of the BPA Code of Practice

6) Southampton Leisure World car park has no keeper liability - due to byelaws prevailing – see POPLA decision code 6060344057 for nearby Town Quays also under ABP byelaws

I have explained each of these points in more detail below.

1) The Invoice sent is not a genuine pre-estimate of loss.

In reagards to this parking event there was no damage nor obstruction caused so there can be no loss as a result. ParkingEye notices allege 'breach of terms/failure to comply' and as such only the landowner/occupier (not the agent as in this case) can pursue liquidated damages directly flowing from the parking event.

The car park at the time of the alleged breach was half empty, therefore it cannot be said that any such impact would have been felt by the business as a result of other users not being able to park. This applies both to ParkingEye business and to other businesses in the area surrounding Leisure World.

ParkingEye are acting as a third party business agent, and therefore this charge is an unenforceable penalty. In ParkingEye v Smith, Manchester County Court December 2011 it was ruled that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine an amount in addition to this would be deemed a penalty.

Further to this, The Office of Fair Trading has explained 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. 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.

It can be assumed that ParkingEye will respond to this claiming to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye charge in a similar location (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 the 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.''

2) ParkingEye do not have ownership of the land described in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. In the case that a legal contract is shown to POPLA it should be noted that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers:

ParkingEye v Sharma, Case No. 3QT62646
Parking Eye v Gardam, Case No.3QT60598

3) In adherence with the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. Therefore I require ParkingEye to produce a copy of the contract with the relevant landowner as I believe it is not compliant with the CoP and that it is the same disputable business agreement model as displayed in the Sharma and Gardam cases shown above.

In the event of ParkingEye being able to provide 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 and factual irregularities. I expect that the POPLA Assessors' are well aware that ParkingEye witness statements have been robustly and publicly discredited and are, arguably, not worth the paper they have been photocopied on.

4) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver

The signage at the car park failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly inform the driver of the terms and warn of any consequences for breach. Furthermore because ParkingEye are an agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance).

An alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this would be too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye does not display signage with full terms, which could be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of the vehicle.

5) ANPR Accuracy and breach of the BPA Code of Practice 21.3

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. 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. I have also seen no evidence that they have complied with the other requirements in this section of the code.

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.

(Ref ParkingEye v Fox-Jones 08/11/2013)

6) Southampton Leisure World car park has no keeper liability this due to ABP byelaws prevailing. Specifically ABP Leisure World car park not being deemed "Relevant Land".

It is my understanding that ParkingEye are aware of this issue following the POPLA decision code 6060344057 which is for a nearby car park also exempt from the Protection of Freedom Act 2012 and therefore from keeper liability. This renders the issued PCN in question, defective.

POFA 2012 states that:

3(1) In this Schedule “relevant land” means any land (including land above or below ground level) other than

(a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b) a parking place which is provided or controlled by a traffic authority;
(c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

Leisure World and the surrounding port is covered by bye-laws (statutory control) it clearly falls under 3(c) and is therefore exempt from POFA 2012.

For ParkingEye to claim in their standard letters that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Byelaws, it is a breach of the Consumer Protection from Unfair Trading Regulations 2008.

The Byelaws documentation evidence can be found at:

southamptonvts.co.uk/admin/content/files/PDF_Downloads/Soton%20Byelaws.pdf

The byelaws make it very clear (at byelaw 39) that the penalties for parking on the land designated is solely in the gift of the Criminal Courts and as such there is no standing for ParkingEye to enforce civil parking charges or parking systems.

The documentation setting out the byelaws also makes it completely transparent that the Port of Southampton to which they apply includes the Leisure World car park as shown on page 20.

Based on the above defence, I must please request that my appeal is upheld and for POPLA to instruct ParkingEye to cancel the parking charge notification.

Yours faithfully,

Fruitcake

One of the experts will be along soon, but that looks really good, and well done for doing it all without asking for help first.


As a Newbie you can't post links, but if you omit the http:/ at the front but type the rest then one of us can add it in so it will work on this thread.

denniswise9

Thanks, fingers crossed it won't need too much re-writing!

Have put the URL in minus the http and www

Dee140157

If it's a pay and display car park, then there is a loss, it only to the amount you should have paid.

As this is PE I would put a Beavis rebuttal paragraph in.(see the how to win POPLA link in post 3 of newbie thread)

Apart from that I would say it is good to go.

Edit: for anyone who uses this thread later for similar PCN, the byelaws mentioned in broken link are here
[url]Http://www.southamptonvts.co.uk/admin/content/files/PDF_Downloads/Soton Byelaws.pdf[/url]

Umkomaas

Quick skim from me.

You need to get the commercial justification rebuttal in from the Beavis case.

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.''

Your phrasing here is a bit cumbersome.

6) Southampton Leisure World car park has no keeper liability - due to byelaws prevailing – see POPLA decision code 6060344057 for nearby Town Quays also under ABP byelaws

Keeper Liability under PoFA 2912 cannot be invoked: this is not Relevant Land as Byelaws apply. So that just needs a little bit of revising.

That's it for now, I may get a chance to have another look later. HTH

The_Deep

It has only been operating for just over a month, and already business is down

http://www.dailyecho.co.uk/news/11255664.Anger_over_parking_changes/

Complain, complain, complain complain, write to the local papers, radio stations etc., etc. BBC South Today, If they are claiming keeper liability complain to Trading Standards, complain to any retail outlets, restaurants etc. Did I mention complaints?

Coupon-mad

Looks like a very good POPLA appeal to me, subject to the slight tweaks already mentioned by others.

denniswise9

Many thanks for all your comments. I shall add in the Beavis case commerical justification rebuttal and will re-word the Keeper Liability part and upload a new copy in the morning.

Really appreciate this help, awesome forum and contributors.

denniswise9

Hi all, I have updated and got a possible final draft below...let me know if this is good to go and I'll send it off and then fingers crossed!

Dear POPLA Assessor

POPLA Verification Ref: XXXXXXXXX

I am the registered keeper of Vehicle XXXX XXX and I wish to appeal a recent parking charge from ParkingEye whilst at the Leisure World CarPark in Southampton.

I have shown below a list of points as to why I am not liable for the charge:

1) The speculative parking invoice that was sent is not a genuine pre-estimate of loss.

2) ParkingEye do not have the standing and authority to pursue charges or to form contracts with drivers

3) Flawed contract with the landowner

4) The signage was not compliant with the BPA Code of Practice

5) ANPR Accuracy and breach of the BPA Code of Practice

6) Keeper Liability under PoFA 2012 cannot be invoked: this is not Relevant Land as Byelaws apply. See POPLA decision code 6060344057 for nearby Town Quays also under ABP byelaws

I have explained each of these points in more detail below.

1) The Invoice sent is not a genuine pre-estimate of loss.

In reagards to this parking event there was no damage nor obstruction caused so there can be no loss as a result. ParkingEye notices allege 'breach of terms/failure to comply' and as such only the landowner/occupier (not the agent as in this case) can pursue liquidated damages directly flowing from the parking event.

The car park at the time of the alleged breach was half empty, therefore it cannot be said that any such impact would have been felt by the business as a result of other users not being able to park. This applies both to ParkingEye business and to other businesses in the area surrounding Leisure World.

ParkingEye are acting as a third party business agent, and therefore this charge is an unenforceable penalty. In ParkingEye v Smith, Manchester County Court December 2011 it was ruled that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine an amount in addition to this would be deemed a penalty.

Further to this, The Office of Fair Trading has explained 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. 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.

It can be assumed that ParkingEye will respond to this claiming to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye charge in a similar location (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 the 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.''

Moreover the charge cannot be claimed as 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (which is now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson 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) ParkingEye do not have ownership of the land described in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. In the case that a legal contract is shown to POPLA it should be noted that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers:

ParkingEye v Sharma, Case No. 3QT62646
Parking Eye v Gardam, Case No.3QT60598

3) In adherence with the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. Therefore I require ParkingEye to produce a copy of the contract with the relevant landowner as I believe it is not compliant with the CoP and that it is the same disputable business agreement model as displayed in the Sharma and Gardam cases shown above.

In the event of ParkingEye being able to provide 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 and factual irregularities. I expect that the POPLA Assessors' are well aware that ParkingEye witness statements have been robustly and publicly discredited and are, arguably, not worth the paper they have been photocopied on.

4) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver

The signage at the car park failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly inform the driver of the terms and warn of any consequences for breach. Furthermore because ParkingEye are an agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance).

An alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this would be too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye does not display signage with full terms, which could be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of the vehicle.

5) ANPR Accuracy and breach of the BPA Code of Practice 21.3

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. 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. I have also seen no evidence that they have complied with the other requirements in this section of the code.

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.

(Ref ParkingEye v Fox-Jones 08/11/2013)

6) At the Southampton Leisure World car park the Keeper Liability under PoFA 2012 cannot be invoked: this is not Relevant Land as Byelaws apply. Specifically ABP Leisure World car park is not deemed "Relevant Land".

It is my understanding that ParkingEye are aware of this issue following the POPLA decision code 6060344057 which is for a nearby car park also exempt from the Protection of Freedom Act 2012 and therefore from keeper liability. This renders the issued PCN in question, defective.

POFA 2012 states that:

3(1) In this Schedule “relevant land” means any land (including land above or below ground level) other than

(a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b) a parking place which is provided or controlled by a traffic authority;
(c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

Leisure World and the surrounding port is covered by bye-laws (statutory control) it clearly falls under 3(c) and is therefore exempt from POFA 2012.

For ParkingEye to claim in their standard letters that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Byelaws, it is a breach of the Consumer Protection from Unfair Trading Regulations 2008.

The Byelaws documentation evidence can be found at:

southamptonvts.co.uk/admin/content/files/PDF_Downloads/Soton%20Byelaws.pdf

The byelaws make it very clear (at byelaw 39) that the penalties for parking on the land designated is solely in the gift of the Criminal Courts and as such there is no standing for ParkingEye to enforce civil parking charges or parking systems.

The documentation setting out the byelaws also makes it completely transparent that the Port of Southampton to which they apply includes the Leisure World car park as shown on page 20.

Based on the above defence, I must please request that my appeal is upheld and for POPLA to instruct ParkingEye to cancel the parking charge notification.

Yours faithfully,

The_Deep

It is a sure fire winner, and PE will almost certainly not contest it.
However, if you are up for it, why not give them a chance, and make it a single point appeal on the issue of relevant land.

I am sure that others on here will warn you of the risks of a Popla loss, but you do not seem like a belt and braces man.

Nothing ventured nothing gained.

Fruitcake

Again, that looks very good but wait for one of the experts to "buy it off" before you send it.


One other thing, since PE have no standing to issue PCNs on this land, I think complaints to the DVLA and BPA are in order. Names and addresses are in the Newbies thread. Also, complain to Soton VTS or Harbour Authority.