POPLA letter review

Driver83

Today I received a letter rejecting my appeal to ParkingEye. I have drafted a POPLA appeal letter and was wondering if anyone with experience would be able to review it and make any suggestions?

Driver83

Dear POPLA Assessor,

I am the registered keeper of vehicle registration XXXX XXX and I wish to appeal a recent parking charge number XXXXXXX using POPLA appeal code XXXXXX. My appeal was refused by ParkingEye because I had not provided sufficient evidence to show that the terms and conditions stipulated on the signage were not broken.

BACKGROUND
Within the retail park there are two very large stores which I shopped in; Home Bargains and Farmfoods.
Usually it would take just over an hour to do our monthly shop but this time it took almost the two hours allocated free parking because my father-in-law was also shopping with us who suffers from severe back problems and panic attacks.
Bearing the allotted time in mind we cut our shopping short and loaded the shopping and baby into the car and had left the parking bay before the 2 hours was up. We then proceeded to go through the KFC drive-through which is on the retail park premises.
Due to it being peak time with a high volume of customers and traffic, upon collection of our order we were met with a long traffic cue trying to exit the premises as well as this, the exit to the car park is on an extremely busy junction where most of the time it is impossible to leave the car park due to the junction being blocked.
So although the car was on the premises of the retail park it was not parked in a parking bay which would more than account for the 14 minutes overstay.

1. Signage
2. No contract with the Landowner
3. The Charge is not a genuine pre-estimate of loss.
4. ANPR Accuracy and Compliance
5. British Parking Association Code of Practice
6. Keeper Liability


1/ Signage
The alleged breach took place in low light and any signs were not adequately lighted to be seen clearly while driving (and indeed were not seen by the driver).
The BPA Code of Practice states: 18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are. (Please note that due to ParkingEye’s high positioning of the signage they were hard to see in low light.) 18.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.” There was no contract between myself and ParkingEye as I did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied. Had I been made aware that ParkingEye would charge £100 if I stayed more than any allowed period of time I would have ensured the vehicle left the Parking area before that period expired.

2/ No contract with the Landowner
Parking Eye does not own the car park and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.
Parking Eye has also not provided any evidence that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.
Parking Eye must provide the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. Specifically, to comply with the Code of Practice, the contract needs to specifically grant Parking Eye the right to pursue parking charges in the courts in their own name, as creditor. Please note that a 'Witness Statement' to the effect that a contract is in place between Parking Eye and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.

3/ 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

4/ ANPR Accuracy and Compliance
ParkingEye is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require ParkingEye to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

5/ British Parking Association Code of Practice: Grace Period.
[FONT=&quot]As a member of the BPA, Parking Eye would be subject to their Code of Practice which states in Section 13: Grace Period: 13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.[/FONT]
[FONT=&quot]13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.[/FONT]
[FONT=&quot]13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.[/FONT]
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.Given that the PCN has been issued for an overstay of 14 minutes I believe that Parking Eye are in breach of the BPA Code of Practice and are therefore unjustified in issuing the PCN.

6/ [FONT=&quot]Keeper Liability Requirements and the Protection of Freedom Act[/FONT]

As keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge. In regards to the notices I have received Parking Eye has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver). In their parking charge notice letter at no point did they actually invite me as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact I am under no legal obligation to do so). The wording of the PCN actually makes it sound like I have little choice but to give up the driver and does not actually state the choice to pay it myself. I would also like to point out that the Act stipulates that the parking company must provide me with the period the car was parked. I would strongly argue that the format of evidence provided (photographs from a number plate recognition camera showing the vehicle enter and leave the car park) is not actually valid or sufficient on its own as a form of evidence. Parking Eye should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do


With all this in mind, I request that my appeal is upheld and for POPLA to inform ParkingEye to cancel the PCN.

Yours faithfully,

Coupon-mad

It used to be OK to send a POPLA appeal like that but you now need to re-write it to take account of ParkingEye v Beavis the other week. read some threads about it and look at post #3 of the NEWBIES thread about POPLA stage, where there is a link to a recent winning POPLA appeal (which may not be exactly the same as yours though, so you must read it and weed out stuff that's not true).

PLease tell us the circumstances, has the driver been admitted?

Was it a free car park - if so how many minutes overstay?

Was it a P&Display car park, if so was a part tariff paid? How many mins overstay?

Where? Retail Park? Motorway Services? Hospital? Quay?

Driver83

Thank you for your feedback Coupon-mad, I have edited the appeal letter to include ParkingEye Vs Bevis.

There has been no admission who was driving the car only that I am the registered keeper.

circumstances:

A copy of the rejected letter to PE can be found on this thread:
forums.moneysavingexpert.com/showthread.php?t=5136678

Location: Moorgate Retail Park, Bury, Manchester
Free parking: 2 Hours
Arrival time: 06/10/2015 12:36:15
Departure time: 16/10/2015 14:51:00
Time in car park: 2 hours 14 minutes
*no pay and display ticket required

Within the retail park there are two very large stores which I shopped in; Home Bargains and Farmfoods.
Usually it would take just over an hour to do our monthly shop but this time it took almost the two hours allocated free parking because my father-in-law was also shopping with us.
Bearing the allotted time in mind we cut our shopping short and loaded the shopping and baby into the car and had left the parking bay before the 2 hours was up. We then proceeded to go through the KFC drive-through which is on the retail park premises.
Due to it being peak time with a high volume of customers and traffic, upon collection of our order we where met with a long traffic cue trying to exit the premises as well as this, the exit to the car park is on an extremely busy junction where most of the time it is impossible to leave the car park due to the junction being blocked.

so although the car was on the premises of the retail park it was not parked in a parking bay which would more than account for the 14 minutes overstay.

System

so although the car was on the premises of the retail park it was not parked in a parking bay which would more than account for the 14 minutes overstay.

There is a mandatory 11 minutes - not 10 folks - to allow you to leave the car park. There is an unspecified "grace" period at the beginning to allow you to park, see the terms, agree the terms and start the contract. About 10 would account for that. So you under stayed and not overstayed.

The 14 minutes overstay is a lie. You did not breach the contract as ANPR does not measure the contractual element.

Coupon-mad

You should mention both these issues and if FIL has a blue badge or medical condition of any sort (arthritis?) then can you prove that as he would be protected under the Equality Act:

it took almost the two hours allocated free parking because my father-in-law was also shopping with us.
Bearing the allotted time in mind we cut our shopping short and loaded the shopping and baby into the car and had left the parking bay before the 2 hours was up. We then proceeded to go through the KFC drive-through which is on the retail park premises.

Mention those 2 points in the 'background' introduction to your POPLA appeal. To see an example PE one with a 'background' for POPLA and written fairly recently, look at the ones linked in post #3 of the NEWBIES thread about POPLA. One of the example appeals just caused PE not to contest it, which happens a fair bit.

You've completely missed 'no Keeper liability'. I always point out to people who miss that - why bother to carefully appeal first time around as keeper, then? Think about it and read the examples in point #3 of the NEWBIES thread - and you will realise why the first appeal was worded that way, otherwise a person may as well have appealed as driver if you are going to miss the point from the POPLA appeal that arises from a keeper appeal.

Let's see you new draft, once you've cribbed from the examples in the NEWBIES thread post #3 about POPLA, and tweaked them to suit.

Driver83

Thanks for the info Coupon-mad, i have added keeper liability and code of practice to the letter.

in response to the Equality Act, although my father in law does have a severe back problem and suffers panic attacks he is not a blue badge holder so would it still relate?

thanks

Driver83

IamEmanresu, i have had a look at the code of conduct and i cant see the "mandatory" grace period which specificity mentions the 11minute grace period?

Umkomaas

Qualifying under the Equality Act 2010 is not dependent on the possession of a Blue Badge.

Look the Act up via Google; it will give you a better understanding of 'Protected Characteristics'.

Redx

Driver83 wrote: »

IamEmanresu, i have had a look at the code of conduct and i cant see the "mandatory" grace period which specificity mentions the 11minute grace period?

in that case you have not read section 13 , GRACE PERIODS

also anyone with a long term qualifying disability is covered by the EA2010 , I have a severe back condition called AS and I am certainly covered by it, doesnt matter if he has a BB or not , many dont have a BB or dont quaify for a BB, the EA2010 doesnt even mention it , so its not a criteria , although it helps if a person has one

Driver83

Hi RedX i read section 13, i was asking where it stated that the grace period was 11minutes. No specific time is mentioned in the COP.