Parking Eye POPLA appeal - Aire Street, Leeds

Badlix1

Hello

I previously posted as used this carpark too early and ended up paying the overnight fee of £5.50 for 20 minutes parking.

I Challenged Parking Eye and have now received a rejection from Parking Eye with my details to approach POPLA. I've drafted a response copied below but am I right in thinking that the next step is simply to get POPLA to refer this to Ombudsman Services Ltd before I send the full challenge? And do I select the "i was not improperly parked", "the parking charge exceeded the appropriate amount" or "I am not liable for the parking charge"?

"I am the registered keeper of vehicle reg xxx xxxx 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 07:40 on Sunday 12th July. The car parking notices are unclear and laid out so as to confuse and catch drivers out.. The driver noted on the tariff above the ticket machine that there was a charge of £3:50 to park all day Sunday. The machine however would only accept a minimum of £5.50 which was duly paid.

I contend that the signs and any core parking terms the operator are relying upon fail to clearly state that should you arrive at the car park before 8am you will be made to pay an overnight rate.

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

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

The £100 charge asked for, far exceeds the cost to the landowner who would have received £0.00 from any vehicles parked as the signage states that charges apply Monday-Friday 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. Likewise, by paying £5.50 the driver actually overpaid for the length of stay - we would argue that Parking Eye in fact owe the driver a £2 refund.

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."

Redx

register the popla code on their website so that they can get the Ombudsman Service involved for you

save your appeal for the OS after they contact you (that is my belief)

if asked about the 4 boxes, tick all of them except stolen (3 from 4)

not a gpeol should be the last point, followed by the Beavis paragraph in blue from the NEWBIES sticky thread

if there are POFA 2012 irregularities, add them

Badlix1

Many thanks. Should I include a picture of the parking ticket as evidence?

Coupon-mad

No need to attach the PCN at all but - as long as you have never named the driver - when you actually write the appeal (which is NOT yet!) you must include a point that the PCN is not compliant with Schedule 4 of the POFA 2012, so there can be no keeper liability. Any keeper missing that appeal point off any POPLA appeal, ever, is seriously missing a trick with any PPC. There are no fully compliant PCNs, in my view, but you do (later) have to tell POPLA in detail what the omissions are).

Go through the PCN and compare it to the exact wording, blow by blow, in para 9 of schedule 4. I identified 4 or 5 issues with PE PCNs a while back, including the fact there is no date of posting (the 'date issued' is certainly not the date they posted it).

Today, go online and 'register your intent' to appeal at POPLA. No need yet to even put any appeal wording, take the next 2 weeks to find the errors in the PCN.

Badlix1

Thanks Coupon-mad. Apologies I should have been clearer I meant the parking ticket for windscreen display that was provided after pouring £5.50 into the pay machine.

Have now registered my intent and will be tweaking my formal challenge.

Redx

you can add it but they dont normally adjudicate on bought tickets, it tells you this on the popla website, so assume the OS will use the same parameters and ignore it