Parking Eye Preston- POPLA appeal advice

catalanista

I received an £85 charge for a 13 minute overstay recently in a Parking Eye car park in Preston. Following advice here and on peppipoo, I appealed against PE and was sent a POPLA code.
I have now drafted the appeal to POPLA (again, thanks to tips on here) and was wondering if anybody might advise how this might be improved or if it is now OK to submit to POPLA- all comments gratefully received


POPLA code: XXXX


The Keeper of the vehicle XXXXXXX has received a notice from Parking Eye with regards to XX Car Park, Preston. NTK# XXXX dated XXXX


The Charge is for £85 for a 13 minute ‘overstay’


As the keeper I have no legal training and am not represented legally, I am following the advice found on the internet to appeal your charge.
As the registered keeper of the above vehicle, I am appealing on the following grounds which are detailed in the paragraphs below;

• Purchases were made on site
• A road traffic accident had taken place at the exit of the car park causing delays for those exiting
• The signage is not readable so there was no valid contract formed.
• No standing or authority to pursue charges, nor form contracts with drivers.
• Unfair terms
• No genuine pre-estimate of loss

• Primarily you should be advised that significant purchases were made at on-site stores when the charge occurred. Receipts will be submitted.
• On exiting the carpark on the 18th July, there had been a road traffic accident on the main road directly in front of the exit. The emergency services were there (police and ambulance) and can verify this. This incident caused delays preventing exiting the car park earlier.
• Unclear & non-compliant signage which created no contract.
  
  The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed.
  
  I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. Any alleged contract (denied in this case) could only be formed at the entrance to the car park, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign when entering the station platform area, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Parking Eye have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

4. Lack of standing/authority from landowner.


It is the keeper’s understanding that the original agreement Parking Eye has allowed for drivers to be on site for considerably longer than 1 hour 20 minutes


Parking Eye are not the landowner and do not have the authority to offer contracts to park

Parking Eye 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 issue PCNs, merely acting as agents for the landowner. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.

I require Parking Eye 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 £85 sum for this alleged contravention in XX Car Park Preston. 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 any landholder). 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, otherwise there is no authority

5. Unreasonable/unfair terms.


The keeper does not consider a charge of £85 for a 12 minute 'overstay ' to be in any way justified. It is spurious and extravagant.

I would assert that the charge being claimed by Parking Eye is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

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 attempt to profit by charging a disproportionate sum where no loss has been caused by a keeper who might have parked in a free-parking area. I put Parking Eye to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.



6. The charge is not a genuine pre-estimate of loss (GPEOL).

I would argue the parking charge as not being a GPEOL on the following points:

As this car park is free, there is no loss flowing from this parking event. 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. As was found by District Judge Charles Harris QC in 'A Retailer v Ms B' (a case which turned on whether there was a loss to pursue from a consumer) no staff have been 'significantly diverted' from their duties. In this case, issuing a PCN and then handling appeals is a part of Parking Eye salaried staff's normal day-to- day activity, so staffing costs/NI contributions cannot be properly included in a loss statement.

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 Parking Eye 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 be adjourned pending a final decision on the Beavis case.


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


Thanks to all MSE forumites- you are doing a great job

Redx

seems good to me

but number the bullet points and then renumber the actual appeal points so everything matches

cant believe PE are so stupid as to not cancel when people cannot leave a car park due to an unforseen road traffic accident

it seems that you maybe should also point out that the cameras have only captured entry and exit and so time on site, not parking time, so waiting to leave a site is not parking , its departing

also make sure you put in a paragraph about anpr accuracy

also check for POFA 2012 failures and highlight any

enfield_freddy

was this ALDI on corporation St?

Guys_Dad

Significant purchases are NOT an appeal point to POPLA. These are for the PPC and landowner.

Your point about inability to exit due to an accident is a valid point and you must expand it and lose the purchases point.

In fact, you can add

"I would refer you to the chief adjudicator, Henry Greenslade's annual report for 2015 page 19 in which he states "As regards time to leave a car park, it must be borne in mind that there can be a delay in a vehicle physically getting out of a car park due to heavy traffic. This is not such an uncommon event as might be imagined." So beef that up!

You can find the link here http://popla.org.uk/

catalanista

Wow- such quick responses- thank you all!
Yes it was the Aldi carpark-Aldi would not even speak with me!
I did purchase at Abakhan though- wonder if it's worth speaking with store manager there.
The bullets were lost when I uploaded the thread but I will be sure to add it back in my appeal
Will add the points about ANPR not recording my attempts to leave- in fact due to the blockage we went back in store and made some later purchases but Im not sure if bank statements will show the times of purchases
Another question- does anybody know what the Parking times contracted between Parking Eye and the Local Authority of Preston actually are? I read somewhere that the LA granted a 2 hour allowance, but that PE had sneakily reduced this to 1 hour 20 minutes (how random is that?)

enfield_freddy

Another question- does anybody know what the Parking times contracted between Parking Eye and the Local Authority of Preston actually are? I read somewhere that the LA granted a 2 hour allowance, but that PE had sneakily reduced this to 1 hour 20 minutes (how random is that?)






no , the time STIPULATED in the planning concent granted when the land was bought from Dutton Forshaw in 1999 was 3 hours , for use by people on site and visiting shops off site.


Aldi know this


Parking Eye know this


No amendment's have been asked for or granted by Preston City council.


having gleaned this info you should contact Aldi head office and state that you will submit the paperwork to the court , should PE tae it this far.


recently , Aldi do not like there name associating with PE in the courts, and one as to ask if they have told PE not to take cases on Aldi land to court .


the above documents can be got from Preston council , they are not online

catalanista

Thanks Freddy.
Do you know how/ where i can obtain the documents showing that three hours planning permission was granted for this car park please? It would be SO dishonest of anybody to reduce planning permission to 1 hour 20 minutes while nobody was looking, and then to try to charge 'overstayers'. In fact it sounds like an illegal attempt at extortion if it can be proven to be correct.

enfield_freddy

you can get it from the planning office at the town hall , the online version omits car park planning etc , seems cut down. public information , token photocopy price , they cannot refuse this during working hours.


Aldi know this


PE know this


I have fought 2 such cases myself , however both have been before the POPLa stage.


continue with your POPLa appeal adding that the planning permission (STIPULATED) is different than the time being allowed by PE, I dought that PE want this info coming to light with the general public in the town

catalanista

enfield_freddy wrote: »

you can get it from the planning office at the town hall , the online version omits car park planning etc , seems cut down. public information , token photocopy price , they cannot refuse this during working hours.


Aldi know this


PE know this


I have fought 2 such cases myself , however both have been before the POPLa stage.


continue with your POPLa appeal adding that the planning permission (STIPULATED) is different than the time being allowed by PE, I dought that PE want this info coming to light with the general public in the town

Freddy
Do you know if I have to go in in person to request planning permission? Am going on holiday this weekend and may not be able to get in on time before appeal date is up. Or do you have a copy of the planning permission that you could send me via PM please? 😉

enfield_freddy

no you will hit a brick wall by phone / email , you need to go in person and ask (demand) to see them


no ifs or buts , NOW not "its in the post"

Northlakes

Enfield Freddy will right on this. He has the local knowledge.

With a POPLA appeal it us to PE to prove you are wrong not the other way round.

The other comments are valid and the 'no standing' should be the No 1 point.

A statement regarding the planning permission could simply say.

The driver was unaware of the limited 1Hr 20Mins parking limitation as the original planning consent for this this development gave a 3 hour period of parking. In any event any perceived contract was frustrated owing to a traffic accident causing traffic congestion.