POPLA Southampton Leisureworld ParkingEye Appeal Draft - Appreciate opinions please

Dorsetgal

Evening, I posted recently about my ParkingEye experience at Southampton Leisureworld and have had a go at a draft POPLA appeal. I would really appreciate an expert eye, as I have to submit by close of play tomorrow. Thanks everyone:-

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 Leisure World, Southampton, car park on Saturday 12th September. The driver paid £3.00 for 3 hours, at 13.21, at a paymachine. The driver noted that the car registration had to be inputted and duly did so. (See copy Ticket enclosed). The driver had an appointment for a mobile phone to be repaired in West Quay. During the visit to West Quay there was a Zone Fire Evacuation (see copy email enclosed) which delayed the collection of the mobile phone (see copy Receipt enclosed). The arrival time on the PCN is 13.12, the departure time 16.37.

Two weeks later I received a PCN of £100 for the 25 minutes exceeded. However, there are only 16 minutes exceeded from the time on my Ticket.

The grounds for this appeal are:
1. The signage was not readable so there was no valid contract formed.
2. No genuine pre-estimate of loss.
3. Proprietary Interest.
4. The ANPR system is unreliable and neither synchronised nor accurate
5. The Notice to Keeper is not compliant with the POFA 2012 – no keeper liability.

1. The signage was not readable so there was no valid contract formed between ParkingEye and the driver
The only signs are up on poles, away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the ParkingEye signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied

2. 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 final 16 minutes the car was on its property, when the car was being loaded and driven around and out of the busy site. For this charge to be justified, a full breakdown of the costs ParkingEye 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.
3. 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.
4. The ANPR system is unreliable and neither synchronised nor accurate, and there is no evidence that this was just one visit
ParkingEye's evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access AFTER parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event.
The fact that for ParkingEye to be using two timings but favouring the one which is secret and works disadvantageously against consumers, and starts before a contract even begins, is an unfair term, a breach of consumer Regulations and contrary to good faith. 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 Pay and Display machine timer. And then the BPA allow at least 10 minutes after expiry to leave anyway in normal circumstances.

5. 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.


This concludes my POPLA Appeal.

Jim_AFCB

You need to find your original thread https://forums.moneysavingexpert.com/discussion/5348445 and cut/paste the post above into it.
That way, the more expert among us can get some context to your appeal.

Following the Beavis judgment handed down yesterday, "not a GPEOL" is dead in the water and therefore should be removed.

Northlakes

Unfortunately your point 2 GPEOL has gone out the window with the verdict of the Supreme Court yesterday.
The other points are still valid.

Did you check on this site being not-relevant land for POFA 2012 or is it just outside the land covered by byelaws?

This may assist,

http://www.legislation.gov.uk/uksi/2013/2272/made

Look up Edna Basher threads on this.

Dorsetgal

Thanks Jim, didn't realise - will copy over to original post. I was dubious after yesterday's verdict and stuck in the GPEOL point, but will remove.

Thank you Northlakes, I *think* I did see a post somewhere that the land was just outside of the land covered by Southampton Ports.