PCN - Aire Street Leeds

b0nex

Hi all,

First of all, thank you for this great forum. It has proven to be a formidable place to share experiences and knowledge.

I am using this thread as I have received a PCN from the PPC Parking eye after parking in Aire street car park in Leeds.

The situation is the following:
The driver parked in the Aire Street car park in Leeds on Monday 31st of August at 13:29. One of the drivers parking at that time paid with the online application and was given a full day cover (might be because it was bank holiday). After, reading the sign above the machine which stated ‘Mon-Fri 8am – 6pm with the tariff below’ the driver paid £4.5 considering that would cover for the whole day (this is the exact amount paid online by the other driver), but the ticket showed an expiry time of 16:29. The driver left the parking at 16:48.
Two weeks later I received a PCN of £100 for the 19 minutes exceeded.
I have followed the guidance in the newbies thread and used the template to appeal to Parking Eye which has been already rejected.

This is my try for the POPLA; any advice of guidance would be appreciated.

POPLA APPEAL DRAFT
I am the registered keeper of the vehicle and this appeal will probe that I am not liable for the parking charge. The grounds for this appeal are the following:

a) Misleading tariffs and signage.

The driver entered the car park at 13:29 on 31st of August 2015, bank holiday. The driver noted on the tariff that chargeable hours were Monday-Friday 8am-6pm and Saturday and Sunday 8am-6pm. Nothing mentioned about the chargeable amount during bank holidays. The previous transactions through the paybyphone online application leaded the driver to believe that the weekend tariff of £4.5 applied as other drivers in the car park at the time received such tariff in that exact date. The driver left the car park at 16:48.
I require that the operator provides documentary evidence of the consistency in the tariff applied in the cark park, both in the ticket machine and online.

b)Excessive charge

The charge is a penalty and not a genuine pre-estimate of loss. In its parking charge notice, ParkingEye has failed to sufficient evidence to justify the £100 loss the landowner might have incurred for the extra 19 minutes the car was parked in its property. For this charge to be justified, a full breakdown of the costs Parkin 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 should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any car being parked at that car park.
This charge from ParkingEye is a third party business agent is an unenforceable penalty. 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.
POPLA and ParkinEye will be also 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". My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

c) Proprietary Interest

Parking Eye has not provided enough evidence of their interest in the land as they have no legal possession which would give ParkingEye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. 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

Thank you in advance.

Coupon-mad

Take a look at the Tower Road example here:

https://forums.moneysavingexpert.com/discussion/5335458

You need to be MUCH stronger on the unfairness of a system which acts contrary to good faith (as this rip off does). And I think you need to explain the background a bit better as regards the situation - your description here was better than the one you put in the POPLA draft:

The driver parked in the Aire Street car park in Leeds on Monday 31st of August at 13:29. One of the drivers parking at that time paid with the online application and was given a full day cover (might be because it was bank holiday). After, reading the sign above the machine which stated ‘Mon-Fri 8am – 6pm with the tariff below’ the driver paid £4.5 considering that would cover for the whole day (this is the exact amount paid online by the other driver),

And if you appealed as 'keeper' throughout - think to yourself WHY you did that - what's the reason for not naming the driver?

Answer= the POFA!

The entire reason for appealing as keeper, is to use 'no keeper liability' as an appeal point! It always amazes me how many newbies miss the entire point - people may as well appeal as driver if they miss that winner of an appeal point! Don't appeal as driver...

b0nex

Coupon mad, thank you for your advise.

I have added the no keeper liability ground and a better description of the situation.

See an updated version of the POPLA appeal draft:

POPLA APPEAL

I should start this appeal by explaining the situation of how I was, as a keeper of the vehicle xxxxxx, issued with a £100 parking charge notice (PCN) from ParkingEye. I am the registered keeper of the vehicle and this appeal will probe that I am not liable for the parking charge.
The driver parked in the Aire Street car park in Leeds along with a friend in another car on Monday 31st of August at 13:29. The driver parking at that time paid £4.50 (plus £0.20 admin fee) online which covered them for the full day until 6pm. After, reading the sign above the machine which stated ‘Mon-Fri 8am – 6pm with the tariff below’ the driver paid £4.5 believing, like their friend, this would cover them for the whole day (this is the exact amount paid online by the other driver), but the ticket showed an expiry time of 16:29. The driver left the parking at 16:48.

Two weeks later I received a PCN of £100 for the 19 minutes exceeded.

I have spent several hours researching about the charges from ParkingEye as and found this appears to be an all-too-common, misleading trap set by this specific private parking company, as widely reported online by victims and I now feel strong enough to exercise my right to appeals this to POPLA.

The grounds for this appeal are the following:
 Misleading tariffs and signage
 No genuine pre-estimate of loss.
 Proprietary Interest
 The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.

a) Misleading tariffs and signage.

The driver entered hours the car park at 13:29 on 31st of August 2015, bank holiday. The driver noted on the tariff that chargeable was Monday-Friday 8am-6pm and Saturday and Sunday 8am-6pm. Nothing was mentioned about the chargeable amount during bank holidays. The previous transactions through the paybyphone online application lead the driver to believe that the weekend tariff of £4.5 applied as other drivers in the car park at the time received such tariff on that exact date. The driver left the car park at 16:48.

I require that the operator provides documentary evidence of the consistency in the tariff applied in the cark park, both in the ticket machine and online.

b) No genuine pre-estimate of loss.

The charge is a penalty and not a genuine pre-estimate of loss. In its parking charge notice, ParkingEye has failed to sufficient evidence to justify the £100 loss the landowner might have incurred for the extra 19 minutes the car was parked in its property. For this charge to be justified, a full breakdown of the costs Parkin 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 should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any car being parked at that car park.

This charge from ParkingEye is a third party business agent is an unenforceable penalty. 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.

POPLA and ParkinEye will be also 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". My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

c) Proprietary Interest

Parking Eye has not provided enough evidence of their interest in the land as they have no legal possession which would give ParkingEye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. 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.

I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkingEye.

d) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.

As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

In the NTK before me I can see that the car either not purchased the appropriate parking time or remained at the car park for longer than permitted. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff).

These are the omission from POFA 2012 in the NTK issued:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—

(i)specified in the notice; and

(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4))”

The NTK specifically fails on all counts. It even fails to describe the specific circumstances for such a parking charge amount due.

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.


This concludes my POPLA appeal.
Yours faithfully,

Coupon-mad

That is better now you have the 'no keeper liability' argument in there. Quite clearly they should have stated the amount of the partially paid and alleged unpaid tariff.

This bit needs changing because the car was not 'parked' for an extra 19 minutes:

In its parking charge notice, ParkingEye has failed to sufficient evidence to justify the £100 loss the landowner might have incurred for the extra 19 minutes the car was parked in its property.

The car was 'on site' but you can argue the final 19 minutes were not parking but (maybe) 'loading' and driving around and out in a busy site and in any case, the ANPR timings may not be synchronised because there are several timings conflicting here. The entrance camera could be 10 minutes or more out from the exit camera and either of them might not match the P&D machine timer. And then the BPA allow at least 10 minutes after expiry to leave anyway in normal circumstances. So put them to strict proof that their system was not 9 or 10 minutes out.

You could also put them to 'strict proof' of the tariff paid by those drivers who chose to 'pay by phone' at that time of the day on 31st August because you are contending as FACT that the driver knows that other drivers were paying £4.50 for 'all day', it being a bank holiday. So you believe the P&D machines were not charging the same as the phone system on 31st August = unfair terms under the UTCCRs.

I can't see anything yet about unfairness and the Aziz test, as shown in the linked example I'm sure. It is certainly always arguably unfair to use cameras alongside P&D machines and 'charge' genuine paying drivers £100, exactly as they would have done rogue parkers staying ten hours and not paying a penny.

The 'Aziz test' (quote the ECJ case law) says a driver would not have agreed to pay an extra £100 (or £70 or whatever the PCN says) had this been negotiated in advance. Argued well, that's VERY hard for a PPC to rebut...all POPLA appeals must have that.

NateR

Do we have any update on if this was successful?

Umkomaas

NateR wrote: »

Do we have any update on if this was successful?

It's likely to be a few weeks before any decision from POPLA is forthcoming.

Hopefully, after the help the OP has received from the forum, he/she will come back and update. Many don't!

Hannach

I have never used a forum before, and feeling slightly overwhelmed reading all the links.
I am currently drafting an appeal letter to POPLA with regard to a "PCN" from parkdirect uxbridge, after my initial appeal to them was rejected.
I appealed before going online and reading all the links, and in my appeal I did say that I was the driver.
I can see from many posts that I should not have done so. Will this affect my appeal to POPLA in some way? will they reference my initial appeal to park direct? Or should I still use the no keeper liability point?
Thank you

Redx

Hannach wrote: »

I have never used a forum before, and feeling slightly overwhelmed reading all the links.
I am currently drafting an appeal letter to POPLA with regard to a "PCN" from parkdirect uxbridge, after my initial appeal to them was rejected.
I appealed before going online and reading all the links, and in my appeal I did say that I was the driver.
I can see from many posts that I should not have done so. Will this affect my appeal to POPLA in some way? will they reference my initial appeal to park direct? Or should I still use the no keeper liability point?
Thank you

please use the NEW THREAD button and copy and paste your question into the new thread, then we will answer you

please dont tack onto somebody else`s threads (known as hijacking) - especially when this thread is about Parking Eye and not Park Direct

thank you

b0nex

POPLA has not reported any decission yet. I will let everyone know as soon as I hear back from them.

Coupon-mad

b0nex wrote: »

POPLA has not reported any decision yet. I will let everyone know as soon as I hear back from them.

Have you had PE's evidence pack and rebutted it? You need to look at the landowner contract carefully as it's generally not signed by the landowner I believe.

If you haven't had the evidence you MUST email POPLA urgently (and PE* and ask for it); also you should have got an email from POPLA about adding a stronger argument post Beavis. Have you had that?



*info@parkingeye.co.uk