POPLA Appeal

bingley_blue

We too have fallen foul of Parking Eye at Aire Street in Leeds, after paying £4.50 for the privilege on a Saturday afternoon, but apparently the 8am -6pm charge doesn't mean there are no charges after this time. We left at 18:52 and so received a PCN through the post

Our appeal to Parking Eye was unsurprisingly rejected, so the next step is to POPLA (we have a code) I've drafted my POPLA appeal after reading previous posts on here, so was hoping for some guidance from the people in the know on here

I am the registered keeper of vehicle reg xxxxx and 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.
The driver entered the car park at 16:29:32 on 20th June 2015. The car parking notices are poorly lit and are above eye level. The driver noted on the tariff above the ticket machine that chargeable hours were Monday-Friday 8am – 6pm and Saturday and Sunday 8am - 6pm (see photo attached). They purchased a ticket for the weekend tariff of £4.50, leading them to believe that they had paid up to the chargeable time, and that charges did not apply after this time. The driver left the car park at 18:52:06.
I contend that the signs and any core parking terms the operator are 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 far exceeds the cost to the landowner who would have received £0.00 from any vehicles parked as the signage states that charges apply Monday-Friday 8am – 6pm and Saturday and Sunday 8am - 6pm.
In the appeal Parking Eye did not address this issue, and has not stated why they feel a £100 charge is an appropriate pre-estimate of loss.
For this charge to be justified a full breakdown of the costs Parking Eye has suffered as a result of the car being parked at the car park is required and should add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, admin, operating costs. parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.
This charge from ParkingEye 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.
ParkingEye 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 ParkingEye 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 ParkingEye 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.
3) Proprietary Interest
As the registered keeper I do not believe that Parking Eye has demonstrated a proprietary interest in the land, because they have no legal possession which would give Parking Eye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Parking Eye'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.
The registered keeper believes 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

any comments would be most appreciated

Redx

edit the above and separate the sections using the return key

also , add a bullet point style menu to the beginning just above 1) so that we and the popla assessors can tell what is in the body of text too

if copying and pasting from word, copy into notepad first, do the editing, save, then copy and paste onto here

at the moment its just a wall of illegible text, sorry

bingley_blue

Many thanks.. I've amended the first point slightly, edited it in notepad and separated out the sections, so hopefully this is a bit easier to read.

I am the registered keeper of vehicle reg xxxxx and 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.
The driver entered the car park at 16:29:32 on 20th June 2015. The car parking notices are above eye level. The driver noted on the tariff above the ticket machine that chargeable hours were Monday-Friday 8am – 6pm and Saturday and Sunday 8am - 6pm (see photo attached). They interpreted the sign to indicate that outside these times, there was no charge. They, therefore purchased a ticket for the weekend tariff of £4.50, leading them to believe that they had paid up to the chargeable time, and that charges did not apply after this time. The driver left the car park at 18:52:06.
I contend that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read and so unclear and ambiguous to inform the driver of the appropriate charges.
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 far exceeds the cost to the landowner would have received from any vehicles parked as the signage states that charges apply Monday-Friday 8am – 6pm and Saturday and Sunday 8am - 6pm.
In the appeal Parking Eye did not address this issue, and has not stated why they feel a £100 charge is an appropriate pre-estimate of loss.
For this charge to be justified a full breakdown of the costs Parking Eye has suffered as a result of the car being parked at the car park is required and should add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, admin, operating costs. parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.

This charge from ParkingEye 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.
ParkingEye 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 ParkingEye 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 ParkingEye 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.

-3) Proprietary Interest
As the registered keeper I do not believe that Parking Eye has demonstrated a proprietary interest in the land, because they have no legal possession which would give Parking Eye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Parking Eye'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.
The registered keeper believes 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

bingley_blue

hi guys,

my POPLA appeal has to be in by friday so just wondered it anyone had any comments on my revised wording?

thanks

Redx

frankly, seeing as you have asked, I dont like it as it is above, plus not a gpeol should be last and have more effort and the words in blue from the NEWBIES thread too (about Beavis)

if I were you, I would look at any recent popla appeals that were approved and plagiarise them somewhat

the main appeal points are :-

NTK not pofa 2012 compliant
no landowner authority
poor signage
anpr inaccuracies etc
not a gpeol
beavis decision later this year

also have a look at the last few pages of the popla appeals sticky thread, see what the assessors are using for their decisions

and look at this recent one for help

https://forums.moneysavingexpert.com/discussion/5274165

and you did not add a bullet point menu, despite my specifically mentioning it

also , add a bullet point style menu to the beginning just above 1) so that we and the popla assessors can tell what is in the body of text too

Guys_Dad

A photo of the sign wording would help if, asyou say, it was in a ny way confusing. Also, if PE send in a copy of the sign taken in daylight, read a recent POPLA DECISION from the sticky thread of the same name (in the last few days) that deal with signs shown in daylight when "offence" was at night. Good wording there by assessor.

bingley_blue

apologies Redx, I didn't purposely miss out the menu; I will add one before I send it in. I am really grateful for members looking through it.

I will take on board all the comments and let everyone know how i get on

bingley_blue

Many thanks again for the comments; I have amended my appeal in line with what has been said and I will attach photographs showing the offending sign.. wish me luck!

I am the registered keeper of vehicle reg xxxxx and 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:

- There is unclear and misleading signage
- A lack of proprietary interest and authorisation to act on behalf of the landowner
- The Charge is not a genuine pre-estimate of loss

1) Unclear and misleading signage.
The driver entered the car park at 16:29:32 on 20th June 2015. The car parking notices are above eye level. The driver noted on the tariff above the ticket machine that chargeable hours were Monday-Friday 8am – 6pm and Saturday and Sunday 8am - 6pm (see photo attached). They interpreted the sign to indicate that outside these times, there was no charge. Indeed, as can be seen from the attached photograph, the extra information relating to parking outside these hours is in such a small font, compared to the daytime parking information as to be unreadable. They, therefore purchased a ticket for the weekend tariff of £4.50, leading them to believe that they had paid up to the chargeable time, and that charges did not apply after this time. The driver left the car park at 18:52:06.
I contend that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read and so unclear and ambiguous to inform the driver of the appropriate charges.


2) Proprietary Interest and Authorisation to act on behalf of the landowner
As the registered keeper I do not believe that Parking Eye has demonstrated a proprietary interest in the land, because they have no legal possession which would give Parking Eye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Parking Eye'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.
The registered keeper believes 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

3) The charge is a penalty and not a genuine pre-estimate of loss. The £100 charge far exceeds the cost to the landowner would have received from any vehicles parked as the signage states that charges apply Monday-Friday 8am – 6pm and Saturday and Sunday 8am - 6pm.
In the appeal Parking Eye did not address this issue, and has not stated why they feel a £100 charge is an appropriate pre-estimate of loss.
For this charge to be justified a full breakdown of the costs Parking Eye has suffered as a result of the car being parked at the car park is required and should add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, admin, operating costs. parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.

This charge from ParkingEye 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.
ParkingEye 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 ParkingEye 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 ParkingEye 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.

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.

Summary
On the basis of all the points I have raised, this “charge” fails to comply with basic contract law, and I ask that the assessor nullify the parking charge notice issued by Parking Eye Ltd