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POPLA APPEAL - TPS - Jubilee Retail Park, Weymouth
Precision
Posts: 36 Forumite
Location: England, Weymouth, Jubilee Retail Park
Car park type: FREE (retail park)
PPC: Total Parking Solutions
PCN type: incident recorded via ANPR; received via mail.
Date of incident: 28/05/2015
Date of PCN issue: 02/06/2015
Date of appeal to PPC: 15/06/2015
Date of acknowledgement of receipt of PPC appeal: 15/06/2015
Date of result of PPC appeal: 14/07/2015
Summary: Sent stage 1 appeal to PPC, got my rejection today. Now constructing the POPLA appeal. I've done this before, so I'm basing it off my previous appeal that I constructed a few years ago (with the help of CouponMad)
--- POPLA APPEAL LETTER ---
Dear POPLA Assessor,
Re: Total Parking Solutions fake PCN, verification code xxxxxxxxxx
I am the registered keeper and I wish to appeal a recent parking charge from Total Parking Solutions. I submit the points below to show that I am not liable for the parking charge:
1) No genuine pre-estimate of loss
This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. Total Parking Solutions notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that Total Parking Solutions charge the same lump sum for a 21 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
This charge from Total Parking Solutions as a third party business agent is an unenforceable penalty. In Parking Eye 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. And in my case this was a free car park with no payment due whatsoever.
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. And 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.
Total Parking Solutions and POPLA 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. Indeed I expect Total Parking Solutions might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, 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".
No doubt Total Parking Solutions will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. 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.
My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.
Additionally, The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.
2) No standing or authority to pursue charges nor form contracts with drivers
Total Parking Solutions do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against Total Parking Solutions which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.
In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.
3) Flawed landowner contract and irregularities with any witness statement
Under 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. I require Total Parking Solutions to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.
If Total Parking Solutions produce 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/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that Total Parking Solutions witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest Total Parking Solutions don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.
4)The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between Total Parking Solutions and the driver
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Total Parking Solutions are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any 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 is too late. In breach of Appendix B (Mandatory Entrance Signs) Total Parking Solutions have no signage with full terms which could ever 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 car, who were there at the invitation of Jubilee Retail Park Weymouth, to shop and enjoy free parking as expressly offered to customers in the principal's advertising and website.
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. I say that Total Parking Solutions 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 that section of the code.
In addition I question the entire reliability of the system. I require that Total Parking Solutions 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 and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was 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.
So, in addition to showing their maintenance records, I require Total Parking Solutions 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 in the Fox-Jones case. As their whole charge rests upon two timed photos, I put Total Parking Solutions to strict proof to the contrary.
I request that my appeal is upheld and for POPLA to inform Total Parking Solutions to cancel the PCN.
Yours faithfully,
THE REGISTERED KEEPER
--- /POPLA APPEAL LETTER ---
Things have changed slightly since the last time I've did this; I've added the 'blue' 'Beavis' paragraph, to the GPEOL section. is there any other recent developments I need to add?
Although I'm appealing a PCN from TPS, this appeal cites several ParkingEye cases. The references appear relevant so I've kept them in.
Can't think of anything more really! let me know what you think
Car park type: FREE (retail park)
PPC: Total Parking Solutions
PCN type: incident recorded via ANPR; received via mail.
Date of incident: 28/05/2015
Date of PCN issue: 02/06/2015
Date of appeal to PPC: 15/06/2015
Date of acknowledgement of receipt of PPC appeal: 15/06/2015
Date of result of PPC appeal: 14/07/2015
Summary: Sent stage 1 appeal to PPC, got my rejection today. Now constructing the POPLA appeal. I've done this before, so I'm basing it off my previous appeal that I constructed a few years ago (with the help of CouponMad)
--- POPLA APPEAL LETTER ---
Dear POPLA Assessor,
Re: Total Parking Solutions fake PCN, verification code xxxxxxxxxx
I am the registered keeper and I wish to appeal a recent parking charge from Total Parking Solutions. I submit the points below to show that I am not liable for the parking charge:
1) No genuine pre-estimate of loss
This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. Total Parking Solutions notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that Total Parking Solutions charge the same lump sum for a 21 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
This charge from Total Parking Solutions as a third party business agent is an unenforceable penalty. In Parking Eye 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. And in my case this was a free car park with no payment due whatsoever.
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. And 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.
Total Parking Solutions and POPLA 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. Indeed I expect Total Parking Solutions might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, 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".
No doubt Total Parking Solutions will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. 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.
My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.
Additionally, The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.
2) No standing or authority to pursue charges nor form contracts with drivers
Total Parking Solutions do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against Total Parking Solutions which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.
In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.
3) Flawed landowner contract and irregularities with any witness statement
Under 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. I require Total Parking Solutions to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.
If Total Parking Solutions produce 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/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that Total Parking Solutions witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest Total Parking Solutions don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.
4)The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between Total Parking Solutions and the driver
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Total Parking Solutions are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any 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 is too late. In breach of Appendix B (Mandatory Entrance Signs) Total Parking Solutions have no signage with full terms which could ever 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 car, who were there at the invitation of Jubilee Retail Park Weymouth, to shop and enjoy free parking as expressly offered to customers in the principal's advertising and website.
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. I say that Total Parking Solutions 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 that section of the code.
In addition I question the entire reliability of the system. I require that Total Parking Solutions 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 and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was 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.
So, in addition to showing their maintenance records, I require Total Parking Solutions 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 in the Fox-Jones case. As their whole charge rests upon two timed photos, I put Total Parking Solutions to strict proof to the contrary.
I request that my appeal is upheld and for POPLA to inform Total Parking Solutions to cancel the PCN.
Yours faithfully,
THE REGISTERED KEEPER
--- /POPLA APPEAL LETTER ---
Things have changed slightly since the last time I've did this; I've added the 'blue' 'Beavis' paragraph, to the GPEOL section. is there any other recent developments I need to add?
Although I'm appealing a PCN from TPS, this appeal cites several ParkingEye cases. The references appear relevant so I've kept them in.
Can't think of anything more really! let me know what you think
0
Comments
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looks ok to me, but wait for other replies if you have time
BUT
make the not a gpeol followed by the Beavis paragraph to the LAST point and renumber them, plus the menu
this is because you are hoping to get them to rule in your favour on any of the other points, if they cant they will stay the case pending the Beavis result, which is why you make it last and not first
also , add an additional point about the NTK if its flawed or if it fails POFA 2012 and you are appealing as keeper0 -
OK this has finally moved on to the next stage! TPS have responded with an evidence pack, and I've spent most of the evening picking through it, highlighting any flaw / breach of BPA: CoP that could find.
This is what I've wrote so far, hosted on google docs (should be an interesting read for you parking junkies as its all original content, minus my verbatim reiteration of parts of my appeal)
docs[dot]google[dot]com/document/d/13uLICVZ13MeT7Q_4qzJUIyAn-jtVJUIVeCaaINpI2U8/edit?usp=sharing
Going forward, I need two things really:
someone with the astute knowledge to read what I currently have, and make sure I'm going in the right direction
Someone to look through my evidence pack, specifically at the 'witness statement', and 'landowner agreement', and give me an idea of how I can rebut them; as I don't understand what I'm looking at / for (note: they have blacked out the surname on the witness statement, and only provided page 1 of a 4 page landowner agreement)
Once I've stripped out any personal info, I'll find a way to host the evidence pack, so if you have the skill to help me understand it, especially the statement and agreement, watch this space
0 -
Snapshots of evidence, showing:
Rebuttal text from TPS
Page 1 of 4 of Landowner agreement (other pages not provided, they blacked out some parts)
Witness statement (they blacked out the surname)
Poor quality evidence picture from section F, that i reference in my rebuttal
docs[dot]google[dot]com/document/d/1YJkMEo8_D9AKp85zEp2O9C7-Y5hLjAuSkrZ8SWzDoSk/edit?usp=sharing
remember to replace the [dot] with actual dots xD0 -
Just noticed, i can read a lot of the blacked out stuff on the landowner agreement (with my non compressed copy xD), not sure if any of it is important?
Landowner agreement:
SCHEDULE 2 (fees): "N/A Free of charge" blacked out
MANAGMENT FEE: "TPS to retain 70% of paid parking charge notices and remit 30% to the client" blacked out
The end of SCHEDULE 3 (length of contract) has "??? notice is provided." blacked out
on an unrelated matter, why the heck have they printed everything out; including pictures and my original appeals, photocopied it all, compiled it all into a PDF, then emailed me it, so redundant! hope they don't charge me for their business costs -_-0 -
so the retail park are keeping 30% of all money raise by parking (possably without grounds) on there land , I wonder if the rates department know they are making money from this? I wonder if the taxman knows? , and more so I wonder if your local newspaper know this , another expos! for the parking prankster?0
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haha maybe, well if he wants it then I'm sure I can pass him the high res copy. Can't say I understand the significance of what's blacked out, but is amusing that they use black marker to blot it out, then photocopy / scan it -_- light pierces paper ya numpty
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post bank holiday bump; could really do with some review before I go ahead and submit what I've done ^^0
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post bank holiday bump; could really do with some review before I go ahead and submit what I've done ^^
This isn't a 'review', but I've skim read your rebuttal - looks OK to me - as far as it goes. It is nicely laid out.
Concentrating on GPEOL as your main appeal point is likely to see POPLA suspend adjudication pending the outcome of the Beavis Supreme Court appeal, so I'd move that down the pecking order.
You don't seem to have rebutted their contract. You need to do a demolition of that, as the contract issue has become the POPLA current 'go to' point and appeals are being dealt with and upheld on that. So put some work into rebutting that, especially weigh heavy on the fact that large chunks have been redacted.
Here are the converted links for anyone else who wishes to view.
http://docs.google.com/document/d/13uLICVZ13MeT7Q_4qzJUIyAn-jtVJUIVeCaaINpI2U8/edit?usp=sharing
http://docs.google.com/document/d/1YJkMEo8_D9AKp85zEp2O9C7-Y5hLjAuSkrZ8SWzDoSk/edit?usp=sharingPlease note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
To update:
I updated the evidence rebuttal, attacking the signage and the admissibility of their contract evidence
http://docs.google.com/document/d/13uLICVZ13MeT7Q_4qzJUIyAn-jtVJUIVeCaaINpI2U8/edit?usp=sharing
One issue i had though, was submitting my rebuttal.
I lodged my initial POPLA appeal on 31 July
TPS sent me their evidence pack on Friday 28 August (bank holiday weekend!)
The online POPLA system seems to close down after 29 days? this gave me ZERO working days to formulate a response and submit it via the online system
It took me until 3rd September to compile my rebuttal, but as the online system was now closed, I had to email it! I sent it to both their email addresses (appeals / enquiries @popla.org.uk)
The original email with popla said i should expect result around the 7th, but it's now the 14th, so hopefully that delay means they are considering my rebuttal!0 -
have you tried to contact POPLA to see if they received / acted on your rebuttal evidence ?
Ralph:cool:0
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