Popla appeal against PE

Satjohn

Hello, I wonder if anyone could help?


I have read through page after page from the forums but cant really find what I'm looking for.
I received a parking notice from Parking eye at the end of July for inadvertently underpaying for a days parking by £1. Not sure how ? perhaps the machine dropped a coin and I didn't realise or check the ticket until the notice arrived demanding £54 raising to £90 in 14 days if not paid! sure you've heard this before. I replied offering the £1 plus I generously sent a further £4 to cover any admin costs. The basis of my appeal to them was the parking charge was disproportionate and punitive in relation to the underpaid £1 therefore not being a pre estimated loss and I also chipped in the unfair terms in consumers contracts 1999.


They rejected the appeal, returned my cheque and issued me with my Popla code with a long drawn out letter referring to cases they had won i.e parking eye vrs Bevis for one. They did however in the interest of goodwill offer to extend the discounted offer for a further 14 days. I have looked at a couple of sample letters on forums etc to send to popla but none seem to fit my situation as I am not arguing I underpaid I just think its highway robbery to charge £90 for a loss of £1.


I also note Parking eyes comment at the bottom of my reply " we also note that a number of your queries are of a generic nature, a number of which we have seen before " - does this make them any less valid?


I am happy for my day in court should it come to that but I cant seem to find out how much that would actually cost me should they win?


Any help would be much appreciated.


Thanks
John

Coupon-mad

Satjohn wrote: »

I have looked at a couple of sample letters on forums etc to send to popla but none seem to fit my situation as I am not arguing I underpaid I just think its highway robbery to charge £90 for a loss of £1.

You are missing the point - a winning POPLA appeal is not argued on details of what happened. If you've found the PE examples of POPLA appeals linked in 'How to win at POPLA' in post #3 of the Newbies thread then you should have found one relating to a P&D car park which you can adapt. If you've already outed yourself as the driver then (ooops) you can call yourself 'the driver' instead of 'the keeper' - but you will have lost ground and a whole appeal point about the NTK not complying with POFA. But it's not insurmountable - you'll still win with our example.

I also note Parking eyes comment at the bottom of my reply " we also note that a number of your queries are of a generic nature, a number of which we have seen before " - does this make them any less valid?

Nope - all their letters are generic templates too!

I am happy for my day in court should it come to that but I cant seem to find out how much that would actually cost me should they win?

Typically £175 - £190 but that can't happen when you win at POPLA.

Satjohn

Thanks I will have another look and try to adapt the P&D one.
Thanks again.
John

Umkomaas

I am happy for my day in court should it come to that but I cant seem to find out how much that would actually cost me should they win?

Presumably you know what you're doing from the angle of having your day in court? On the other hand, asking how much it might cost you suggests you don't.

You'd be able to hold your own against an adversarial lawyer who has generally a pretty good grip on contract law? Not a recommended course of action for you I'd suggest - unless you're both good at the lottery and roulette!

Satjohn

Sorry to be a pain, but I cant find this? Where is the newbies thread?
The letter examples I've seen have been parts of threads.


If you've found the PE examples of POPLA appeals linked in 'How to win at POPLA' in post #3 of the Newbies thread

Dee140157

See my signature

Coupon-mad

Satjohn wrote: »

Sorry to be a pain, but I cant find this? Where is the newbies thread?
The letter examples I've seen have been parts of threads.


If you've found the PE examples of POPLA appeals linked in 'How to win at POPLA' in post #3 of the Newbies thread

At the top of the very forum board of posts you stared at when you decided instead to hit the blue 'new thread' button instead of reading the top thread first.

Satjohn

Thanks for that, I have found the newbie thread now and all the letters and the circumstances when to use each one. Still cant find one that matches my case? I see plenty of reference to pre estimated loss in them and unfair and unreasonable charges. Do I just use those two items and delete everything else. The successful letters I've seen seem to be very long and complex.


Thanks
John

Guys_Dad

Have a look at the POPLA DECISIONS thread tucked away in the other sticky.

Have a look at the last 3 pages to see what wins.

I agree that some of the appeals are too long, but if they win.....................

And wait till you see what the PPCs send to POPLA!!!!!!!!!!!!!!!!!!

Coupon-mad

Still cant find one that matches my case?

It doesn't need to.

I see plenty of reference to pre estimated loss in them and unfair and unreasonable charges. Do I just use those two items and delete everything else.

Nope - why on earth would you delete the rest?

The successful letters I've seen seem to be very long and complex.

Yes - deliberately so. Which is why ParkingEye no longer defend a POPLA case when they see them!

Satjohn

Thanks for all the input. I have adapted one of the letters. Does it really not matter that most of this attached has nothing to do with my case and is obviously generic ???

Dear POPLA Assessor,

As the registered keeper of vehicle registration ********, I am appealing against parking charge number *********** using POPLA appeal code *************. I am not liable for the parking charge on the grounds stated below, and I respectfully 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 PCNs
4. Unlawful penalty charge
5. ANPR (Automatic Number Plate Recognition) accuracy
6. ANPR usage
7. Proof of planning consent for current parking conditions, chargeable regime and ANPR system
8. Non-compliant Notice to Keeper
9. Business rates

1. Non genuine pre-estimate of loss
The amount of £90 demanded by Parking Eye is not a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. Parking charges cannot include business costs which would occur whether or not the alleged contravention took place.


Parking Eye has provided no breakdown of how the sum of £90 has been arrived at based on the alleged parking contravention. As Parking eye cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event. This therefore renders this charge unenforceable.

Given that Parking eye charges the same lump sum for alleged contraventions at any time of day on any day of the week, regardless of whether the contravention was serious or trifling, it is clear that no regard has been paid to establishing that this charge is a genuine pre-estimate of loss, and instead the charge is punitive and is being enforced as a penalty.


2. No contract between driver/Inadequate signage

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”. Parking eye must prove that the driver actually saw, read and accepted the terms at the time the alleged contravention took place. Had this been the case, i.e. the driver had seen the terms and conditions of parking, it would be implied 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, and so I dispute the existence of a contract between the driver and the Operator.

3. Flawed contract with landowner/Authority to issue PCNs
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.

Parking eye does not own this car park and is merely an agent of the landowner or legal occupier. In its notice and rejection letters Parking eye has provided me with no evidence that it is lawfully entitled to demand money from a driver or keeper. I put parking eye to strict proof to POPLA that it has the proper legal authorisation from the landowner to contract with drivers and to enforce charges in its own name as creditor in the courts for breach of contract. I demand Parking produce to POPLA the contemporaneous and unredacted contract between the landowner and the Parking eye


4. Unlawful penalty charge
Parking eye cannot prove demonstrable loss or damage yet a breach of contract has been alleged. It is therefore clear that this Parking Charge Notice is an unlawful attempt at impersonating a legally enforceable parking ticket as issued by the Police or Local Councils. Parking eye could have made clear the letter was an invoice or request for monies, yet it chose to word it as a 'Charge Notice' in an attempt for it to appear threatening and intimidating in order to extort money from unwitting members of the public.

5. ANPR (Automatic Number Plate Recognition) accuracy
Under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require Parking eye 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. As the parking charge is founded entirely on 2 photos of my vehicle entering and leaving the car park at specific times, it is vital that Parking eye produces evidence in response to these points.

In addition to showing their maintenance records, I require Parking eye 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 put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be 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. As its whole charge rests upon two timed photos, I put Parking eye to strict proof to the contrary.

6. ANPR usage
Under paragraph 21.1 of the BPA Code of Practice it is stated: '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.'

Parking eye fails to operate the system in a 'reasonable, consistent and transparent manner'. As Parking eye uses inadequate signage on arrival, as described in section 2 above, there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system, essentially being a secret high-up spy camera, far from 'transparent', unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

7. Proof of planning consent for current parking conditions, chargeable regime and ANPR system
Some parking companies do not have the necessary planning permissions and consent from the local authorities for their current parking conditions, chargeable regimes and installation of ANPR systems. I put Parking eye to strict proof to provide evidence that it has the necessary planning permissions/consent from the local authorities for the current parking conditions, chargeable regimes and installation of the ANPR cameras that are used on the site in question.

8. Non-compliant Notice to Keeper
The Notice to Keeper sent by Parking eye to myself is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor. The Operator is required to specifically "identify" the creditor, which requires words to the effect of "The creditor is ..... ". The keeper is entitled to know the party with whom any purported contract was made. Parking eye has failed to do this and therefore has not fulfilled all the requirements necessary under POFA to allow it to attempt recovery of any charge from the keeper.