POPLA Appeal

ARE92 · 31 December 2014 at 7:56PM

I am a student living in Leeds. On 29 October, I pulled into the Aire Street car park to pick up a friend who was arriving at Leeds railway station.

My friend's train was late and I stayed a little longer than I anticipated. I subsequently received a PCN from ParkingEye claiming that I had been there for 15 minutes and that I owed them £100.

In an initial 'Without Prejudice' letter I admitted that I was driving, but refuted the charge. I also enclosed a cheque for £5.50, as a gesture of goodwill. Parking Eye returned the cheque stating that it was 'lower than the amount due', but provided a POPLA reference number.

I have belatedly found this forum and used it to draft an appeal to POPLA, which is set out below. The deadline expires on 2 January, so I apologise for the short notice. Am I on the right lines?

I am the registered keeper of vehicle xxxxxxx and was driving the car on the date in question.

I contend that I am not liable for the parking charge.

I have researched the matter, taken legal advice and would like to point out the following as my appeal against said charge:

1) Unclear and misleading signage.

I went to pick up a friend at Leeds railway station on Friday 29 October 2014. His train was slightly late and I entered the car park at 22:10 on Friday 29 October 2014. I did not get out of the car, nor did I turn off the engine, but I remained in the car park for 15 minutes.

The car parking notices are poorly lit and are above eye level (see photo). The restriction on 'waiting' as opposed to 'parking' is contained in the very small print at the bottom of the notice. Although there is an 'overnight' tariff I did not consider that I was parking overnight and believed that it was permissable to remain in the car park for a few minutes until my friend arrived.

I contend that the signs and any core parking terms the operator is relying upon were too small for any driver to see, read or understand.

I require that the Operator provides documentary evidence and signage map/photos on this point, lighting at night, colours used in cases of driver colour blindness and compare the signs to the BPA Code of Practice requirements.

2) The charge is a penalty and not a genuine pre-estimate of loss.

The £100 charge asked for far exceeds the cost to the landowner, who would have received £5.50 from any vehicles parked overnight.

In their response to my initial letter ParkingEye did not address this issue and have not stated why they believe that a £100 charge is an appropriate pre-estimate of loss.

For this charge to be justified a full breakdown of the costs ParkingEye has suffered as a result of the car waiting in the car park is required and should add up to £100. Normal expenditure the company incurs to carry on their its (e.g. provision of parking, administration, operating costs. parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of my car being parked in that car park.

This charge from ParkingEye as a third party business agent is an unenforceable penalty. In ParkingEye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.

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. The BPA Code of Practice also states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

The POPLA Assessor will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79 wherein Dunedin LJ stated that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

Should ParkingEye claim any ''commercial justification'' for their charge I would refute this.. In a recent decision about a ParkingEye 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.''

This case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

3) Proprietary Interest

As the registered keeper I do not believe that ParkingEye has demonstrated a proprietary interest in the land, because they have no legal possession which would give ParkingEye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, ParkingEye's lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge.

I believe there is no contract with the landowner/occupier that entitles them to levy these charges and to pursue them in the courts in their own name as creditor. Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant. Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.

4) Duty to mitigate loss

In an attempt to settle this matter a cheque for £5.50 - being payment of the overnight parking tariff - was sent to ParkingEye on 17 November 2014. The cheque was returned on 3 December 2014 with the explanation that '...the amount paid was lower than the amount due...'.

NB The quote from Dunedin LJ in 2 (above) seems a little garbled to me, but I copied this from another appeal?