Care Parking POPLA Appeal advice needed

Smidger

Hi All


One of my daughters has received a PCN from Care Parking for overstaying in the Range Car Park in St Helens whilst shopping there.


I appealed the PCN with Care Parking using one the templates on this site but as expected they refused my appeal.


I am now up to the POPLA appeal stage and have used the Newbies page to copy and draft an appeal to try and suit the circumstances and the nature of the PCN which is exceeding the maximum stay period.


I was wondering if some one would be kind enough to check my appeal and see give me guidance on whether it will be successful and give my any pointers if I have missed something.


Unfortunately I cannot add the rejection letter from Care Parking to the thread as a link so have typed the rejection letter. So sorry in advance for my long message.


Any help would be appreciated.




Here is the rejection letter from Care Parking:


Your appeal against the Parking Charge Notice (PCN) issued on xxxxx at Chalon Way for the alleged contravention of exceeding maximum stay period has been considered by our appeals team, having reviewed the evidence and the details supplied by yourself your appeal has been rejected.


Your appeal has been rejected for the following reasons:


* On xxxxx at 09.44 this vehicle, registration xxxxx entered Chalon Way and did not exit the site until 12.38 exceeding the 2 hour maximum.


* When parking at Chalon Way the driver of this vehicle agreed to pay a Parking Charge of £100 if they did not park in accordance with the terms printed on the contractual warning signs.


* The contractual warnings signs in place state: A parking charge will be issued when: Parking outside of tram services hours. You parked your vehicle in contravention of this term of the contractual warning signs.


* There are contractual warning signs stating the terms and conditions for parking throughout this location, these are displayed at regulars intervals around the car park.


* The operative on duty has filed a full witness statement confirming their observations in relation to this PCN.


* You are correct that you do not need to name the driver. Regardless of the aforementioned facts, the Protection of Freedoms act 2012, covers the requirements of the liability of the charge with regard to the registered keeper. Although you state that you believe the written notice does not comply with the POFA 2012 you have not stated any grounds for this, therefore we can only assume that this with the rest of your appeal is cut and pasted from the internet parking forums, which we can evidence at court if required.


* You state that the charge is not a genuine pre-estimate of loss, again a baseless statement as you have not been provided with any information with regard to the charge, the current ruling by HHJ Moloney QC also covers this.


* By stating that the signage is deficient your are acknowledging it is present, further evidence that the charge was correctly issued.


* A contract exists giving us authority to act on this land, again you claims is baseless and as proved in recent POPLA cases the onus is yours to prove otherwise. There is no requirement to provide a copy of the contract or its content at this stage as you may be aware commercial in confidence is only required to be released to the courts. However, in order to be an approved operate and obtain DVLA information such contracts need to be in place, both the DVLA and BPA are aware of the contract in place which gives authority to issue PCN's when required. The Contractual warning signs in place indicate the case for a legal right to recover charges for this location.


Here is my POPLA appeal which I have drafted.


Dear POPLA Assessor

I am the registered keeper of ?????? and I wish to appeal the decision reached by Care Parking on PCN??????

1) The Charge is not a genuine pre-estimate of loss
2) Lack of signage - no contract with driver
3) Lack of standing/authority from landowner
4) ANPR camera accuracy/transparency
5) Unreasonable/Unfair Terms
6) Witness Evidence on which they base their allegation


1) The Charge is not a genuine pre-estimate of loss

In their rejection letter, Care Parking appear to be asserting that their charge is a contractually agreed sum, I refute this entirely.

If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs to non-customers and a payment mechanism would have been provided on-site. In addition a VAT invoice would have been provided. I have no evidence that this business operation on this car park has been registered for business rates and a VAT invoice has not been supplied.

This is a free customer only car park, there is no mechanism for non-customers to pay for parking and in fact parking other than by customers is specifically disallowed. Clearly permission to park ‘in breach’ can not be granted, and so I contend the parking charge cannot be a contractual price but is in fact a sum sought as damages for breach.

Their sign clearly states the charge is for 'Failure to comply" with the parking conditions i.e. breach of terms, so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full and there was no loss of potential income in a free car park

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all. There is no genuine loss being pursued.

2) Lack of signage - no contract with driver

I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put Care Parking to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. Care Parking state that signs are erected at this location but the wording is inconsistent causing confusing so that no consideration/acceptance and no contract agreed between the parties.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.



There was no agreement to pay. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of Care Parking not expecting to read a contract when they arrive to shop. No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

The signs are certainly not 'startling'. Nor was there any lighting to illuminate the terms, which were in a very small font. The restrictions were not obvious and nor were the terms drawn to the driver's attention in any explicit way - certainly not the risk of any hefty 'charge'. Terms on a notice - or even notices dotted around a large retail park - are not imported into the contract unless brought home so prominently that the party 'must' have known of the terms and agreed to them in their entirety.

3) Lack of standing/authority from landowner


Care Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Care Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Care Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Care Parking are entitled to pursue these charges in their own right.

I require Care Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

4) ANPR camera accuracy/transparency.

The BPA CoP contains the following:
21.1 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.''

Care Parking fail to operate the system in a 'reasonable, consistent and transparent manner'. They do have some signs but these are too high to see on arrival and are not compliant with BPA paragraph 21.1. 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 being merely 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 recording any parking event at all. This operator has no evidence about the length of the parking period.

I require Care Parking to present to POPLA in their evidence, 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 the vehicle entering and exiting at specific times. I know that such data and evidence of maintenance of the ANPR system and clock has to be supplied to the BPA for audits so it is not unreasonable to require sight of these ANPR records. I believe the images are not reliable and the timings are inaccurate.

In order to rebut my point about non-compliance with BPA paragraph 21.1, I put Care Parking to strict proof in the form of photographic evidence of any low, readable signage at this site, which provides a clear 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'.

5) 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 to high to read, 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 and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

6) Witness Evidence on which they base their allegation

I refute entirely the operator's allegation that a member of their staff has filed a full witness statement confirming their observations in relation to this PCN and I ask that the assessor puts them to strict proof as to:

a. The adequacy and contemporaneous nature of the notes that member of staff intends to rely upon.
b. The distance the observations were made over, a description of the lighting conditions and details of how crowded or otherwise the area was and a detailed description of the driver.
c. Details of any aid to vision the staff member used (binoculars etc) and what authorisation they had for their use within the terms of the Regulation of Investigatory Powers Act together with details of the reviews of such authorisations from their instigation up to the point of the alleged observation.
d. Whether any notes were made as the result of direct observation or as a result of contemporaneous viewing of CCTV images and if the latter the assessor is asked to require production of those images.
e. Given the operator's requirement to, at all times, minimise their losses what steps the member of staff took at the time to minimise those losses.

This concludes my appeal and I respectfully request that my appeal is upheld and the charge is dismissed.

Yours Faithfully,

Umkomaas

If this was an ANPR ticket issued through the post (not a windscreen one) why are they writing about an operative on duty? If the ticket was issued on site, then your appeal paragraphs about ANPR cameras have no relevance.

You have made numerous references to 'unlit signage'. As the parking event took place between morning and midday, 'lighting' has no relevance. It is not contrary to BPA CoP not to have illuminated signage (for example, if they only issue daylight tickets).

You mention 'business rates' in appeal point 1 - has no relevance so can be removed.

Can you clarify the ANPR/operative on duty issue?

Smidger

Yes this is ANDR ticket that was issued through the post. The reason I was referring to the operative on duty because Care Parking in their rejection letter stated the operative on duty has completed a witness statement as per the comment below.


"* The operative on duty has filed a full witness statement confirming their observations in relation to this PCN."


If this is not necessary to make any reference to this rejection point then I will remove it from my POPLA appeal.


I will amend my draft as per your other advice regarding the point about business rates and unlit signage, and post again.

Umkomaas

I would make reference to the misleading assertion that an operative was present, yet this is an ANPR ticket. If, as you assume, this was not the case, then it must undermine any other statements made in the PPC's allegations.

But your main thrust must be via the winning points (subject to adjustments suggested) you already have in your draft.

Smidger

Hi I have now amended my POPLA appeal and attach the draft below before submission.


I have remove the references to the unlit signage and the business rates in part 1 as suggested by Umkomaas.


Furthermore I have removed the sections about unreasonable/unfair terms as I don't think they are applicable due to the reference to unlit signage and also removed the section in regard to the witness evidence due to it being irrelevant.


I have also added some further comments and have highlighted these in blue.


I didn't know whether to mention the following statement by Care Parking in their rejection in the appeal: The contractual warnings signs in place state: A parking charge will be issued when: Parking outside of tram services hours. You parked your vehicle in contravention of this term of the contractual warning signs.


Chalon Way is not tram station car parking but is the Range car park. I did know whether it would be of any relevance mentioning this also?


Sorry for my uncertainty over this as I just want to make a successful appeal so any guidance and advice is gratefully appreciated.


Therefore I was just wondering if some one could check my final draft and give me any further pointers or give me the thumbs up to send it off?


Dear POPLA Assessor

I am the registered keeper of ?????? and I wish to appeal the decision reached by Care Parking on PCN??????

1) The Charge is not a genuine pre-estimate of loss
2) Lack of signage - no contract with driver
3) Lack of standing/authority from landowner
4) ANPR camera accuracy/transparency

1) The Charge is not a genuine pre-estimate of loss

In their rejection letter, Care Parking appear to be asserting that their charge is a contractually agreed sum, I refute this entirely.


If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs to non-customers and a payment mechanism would have been provided on-site. In addition a VAT invoice would have been provided.

This is a free customer only car park, there is no mechanism for non-customers to pay for parking and in fact parking other than by customers is specifically disallowed. Clearly permission to park ‘in breach’ can not be granted, and so I contend the parking charge cannot be a contractual price but is in fact a sum sought as damages for breach.

Their sign clearly states the charge is for 'Failure to comply" with the parking conditions i.e. breach of terms, so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full and there was no loss of potential income in a free car park

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all. There is no genuine loss being pursued.

I wish to thank Care Parking for pointing out the judgement passed by HHJ Moloney QC and believe the case they are referring to be Parking Eye V Bevis which I am fully conversant with and as when judgement was passed with some reservations and as anticipated by the Judge to be appealed, which is the case in February 2015 a matter not eluded to in the rejection letter by Care Parking,
To rely or base a defence on such a matter when the case is due in the Court of Appeal and not mention the numerous of previous cases which have found in favour of the appellants when they have challenged GPEOL at court may appear more than a little underhand.

2) Lack of signage - no contract with driver


Due to their high position and the barely legible size of the smallprint, the signs in this car park are very hard to read. I contend that the signs and any core parking terms that Care Parking are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.
3) Lack of standing/authority from landowner

Care Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Care Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Care Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Care Parking are entitled to pursue these charges in their own right.

I require Care Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

4) ANPR camera accuracy/transparency.




Care Parking have made a misleading assertion that an operative was present when in fact the PCN issued by ANPR Camera. I believe this undermines the accuracy of the information given by Care Parking.

The BPA CoP contains the following:
21.1 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.''

Care Parking fail to operate the system in a 'reasonable, consistent and transparent manner'. They do have some signs but these are too high to see on arrival and are not compliant with BPA paragraph 21.1. 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 being merely 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 recording any parking event at all. This operator has no evidence about the length of the parking period.

I require Care Parking to present to POPLA in their evidence, 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 the vehicle entering and exiting at specific times. I know that such data and evidence of maintenance of the ANPR system and clock has to be supplied to the BPA for audits so it is not unreasonable to require sight of these ANPR records. I believe the images are not reliable and the timings are inaccurate.

In order to rebut my point about non-compliance with BPA paragraph 21.1, I put Care Parking to strict proof in the form of photographic evidence of any low, readable signage at this site, which provides a clear 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'.

This concludes my appeal and I respectfully request that my appeal is upheld and the charge is dismissed.

Yours Faithfully,

Umkomaas

referring to be Parking Eye V [STRIKE]Bevis[/STRIKE]

'Beavis'

GPEOL at court may appear more than a little [STRIKE]underhand[/STRIKE].

'disingenuous'

I'd leave in paragraphs 5 and 6 from your original draft. Especially para 6 where you question the operative's involvement. Build your paragraph

Care Parking have made a misleading assertion that an operative was present when in fact the PCN issued by ANPR Camera. I believe this undermines the accuracy of the information given by Care Parking.

into that appeal paragraph.

Do you have any photos of the signage to prove your point?

barely legible size of the smallprint,

If not, don't worry about it; it will be for CPP to prove otherwise.

I would most certainly mention the fact that they have issued a charge on the basis of being parked at the tram station parking facility when in fact the vehicle was parked at The Range, adding further significant doubt as to the PPCs accuracy in the context of this charge - you refute their 'tram station' point absolutely.

Other than the above, I think it's good to go. Tick 3 of the 4 'reasons' on the POPLA submission box (obviously not the 'stolen' one).

Good luck.

Smidger

Thanks Umkomaas


I personally don't have photographs of the signage at The Range but I know copies are on line to view which are accurate. I will leave out the photographs and amend the appeal as per your advice.


I will do my final draft this evening and send it to Popla.


Once again thanks for your help.


I will let you know how I get on.