PCN from PE - Southampton Leisure world/grosvenor casino

Samus123

Hi all,
I have read the newbie post regarding parking fines and it indicates i should start a new thread if wanting to post questions. Which i am doing.
I have found a few templates and unfortunately i cannot find one that seems relevant to my situation.
Heres were i am currently.
Before coming to MSE i had already appealed to PE and of course got a rejection letter. I had proof that i had visited the ciinema in Leisure world and used that in my first appeal but they rejected it and i am now on stage 2 appeal so through POPLA.
The main reason i think it was rejected was because Leisure world is split into 2 car parks. The main leisure world car park which is a pay and display... and a seperate car park for the casino which is attatched to leisure world. I parked in the latter but as i did not use the casino i got a PCN. At leisure world and the casino to get free parking you have to enter your reg into a device situated in both the casino and cinema depending on which one you are using. I did not know they were seperate car parks! It really isnt very clear. Even though going back there is signage but you have to be eagle eyed to notice it! Being a long term user of Leisure world it really wasnt clear in the rules of the new parking arrangements. Many times i have parked in the casino car park thinking it was for cinema users aswell and visa versa for the cinemas car park.
I have seen other appeal templates by users of the leisure world car park and am now asking for help and advice on how i should go about my appeal.
FYI i have 18 days from today to appeal. So last date to appeal is the 28th October.
Thanks all and am hoping for some useful tips and advice.
Im no expert on parking law so i need all the help i can get.

Coupon-mad

It sounds like you have outed yourself as the driver which is a shame because this site is one where the Port Byelaws mean there is no keeper liability. You may have read this on other threads; it would have been a slam dunk winning appeal point...for a registered keeper who didn't say who was driving. After all, the letter was sent to you as keeper and you had no need to say who was driving at all.

Never mind, you just need to go to post #3 of the Newbies thread and find the PE POPLA appeal suitable for a free cark park. Linked in 'How to win at POPLA'. Adapt that and you will have to remove any section about no keeper liability and also change 'I am the keeper' to 'I am the driver' if you have already given that away. And adjust anything not right for your parking event (such as if the example talks about signs in the dark and it wasn't dark then obviously you will need to change the wording).

You will still win using our template.

Samus123

Yes after reading the no keeper liability part i had a feeling i may of shot myself in the foot there. Nevermind though. I will use the free parking template and adapt to suit.
I will have an attempt at it and post for others peoples opinions soon.

Thanks for a reply

Samus123

Ok here is my first draft. A few things i need help on.
1. The template i found was for someone who had parked at a motorway service but i was parked in the Grosvenor Casino car park and is free for users of the casino although i used the cinema (which has a seperate car park that i should of used) this wasn't clear to me. I have made section 2 bold and underlined as not sure what i can replace this with.

2. The few bits in red and underlined are parts i have added.

3. Is there anything else i can put in the summary?


Please see if what i have here is ok and if i can add anything else.


Thanks,





I am the driver of the vehicle related to the parking charge notice 481318/857557 received. I have researched the matter and contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered:

1. Unclear, Inadequate and Non-Compliant Signage

2. Signage not compliant with Motorway Service Station Requirements

3. Contract with the Landowner is not Compliant with the BPA code of Practice and No Legal Status to Offer Parking or Enforce Charges

4. No Contract with the Driver

5. Unfair Terms

6. ANPR Accuracy

7. No Breach of Contract and No Genuine Pre-Estimate of Loss

Below are the detailed appeal points.

UNCLEAR,INADEQUATE AND NON-COMPLIANT SIGNAGE

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand especially in the dark as it was at the time of parking.Also it is very unclear on the difference between the Grosvenor casino car park and the Leisure World car park.

I contend that the signs and any core parking terms ParkingEye are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

SIGNAGE NON-COMPLIANT WITH MOTORWAY SERVICE STATION REQUIREMENTSThis was a Motorway Services Area. 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 Agreement 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'.The policy states that “B19. At all types of site, where a charge is to belevied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.” The compliance of the MSAwith the above policy is disputed and I therefore require ParkingEye to prove that such clearly displayed signage exists within the amenity building(s) at the car park in question. It is not enough to prove that such signage exists within the car park itself.Furthermore the policy states “All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the Highways Agency’s signs specialist for the use of all non-prescribed signs.”I require ParkingEye to show proof to the POPLAadjudicator that the DFT/Highways Agency has granted special authorisation for ParkingEye's traffic signs in this particular MSAto be exempt from this policy requirement. It will not be acceptable for Parking Eye to claim that these particular signs are in ParkingEye's own opinion not 'traffic signs' when these signs have not been erected or positioned to direct pedestrians but instead act to provide information to vehicle users who may never leave their vehicles.

CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODEOF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

ParkingEye do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, ParkingEye have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

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

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator tothe recent Appeal Court decision in the case of Vehicle Control Services (VCS)v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that:"If those charges are consideration for a supply of goods or services,they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore,that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, asset out above.

The Operator, either through the original correspondence, nor reply to appeal make no reference to the recovery of monies for the Landlord at all.

NO CONTRACT WITH THE DRIVER

There is no contract between ParkingEye and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc. were not satisfied.

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. In particular, 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" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where I thas been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

ANPR ACCURACY
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. I require the Operator to 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 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 by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as 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 the Operator in this case to show evidence to rebut this point: 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 this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary.


NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was only at approximately no more than 70% capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can ParkingEye lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable)against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.

UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and 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. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow(review, February 2011), Parking Eye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

SUMMARY

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

BenefitMaster

Was this an MSA? I'm not aware of any motorways through Southampton with service areas and casinos on the dockside...

You cannot simply cut and paste, you MUST tailor your appeal to your circumstances.

Samus123

I did use a template that was provided in the newbie section on the 3rd post down.
The part about the motorway i will need to take out but was wondering if anyone knew of anything that i can replace it with regarding my circumstance. Hence why i put it in bold and highlighted it.
As mentioned before i am no expert on appeals but assumed that what is provided on here i can use and modify to my situation which is what i am trying to do. I have taken the advice from the first person who has replied to me.

Umkomaas

Here's a link (from the NEWBIES FAQ sticky) to a POPLA appeal specifically produced for a PE pay and display car park.

Now, as BM clearly states as above, this is not for copying and pasting verbatim, but one to use as the substantial base for your appeal, and with you going through it word by word, line by line, to make sure it makes sense in the context of your parking event.

Do come back if there is something you don't understand when putting your draft together.

https://forums.moneysavingexpert.com/discussion/comment/65745741#Comment_65745741

Samus123

Hi all,

Just a quick update on my appeal.

I went down 2 routes to get my fine waivered. One being the appeal through POPLA and the other was to go through the manager of Odeon at Leisure world.

Thankfully the manager at Odeon did a sterling job and phoned PE herself and managed to get them to waiver it for me. Couldnt be more greatful to her.

I understand not everyone can be that lucky so i really appreciate her efforts. She even phoned me herself to tell me.

I also understand that if i had gone through the POPLA appeal i would of had to of written an appeal using the templates you guys have on here.

Thanks everyone that replied to my post and i appreciate that alot of you on here help those selflessly.

For every fine waivered we should see it as a small victory and that not more of our hard earned cash isn't going into PE pockets.

Thanks again everyone