Help at POPLA stage please - ParkingEYE at Swiss Cottage Parking-Here.com

keekstuff

Hello everyone

UPDATE - 1st draft in Post #11.
UPDATE - Final draft in Post #15.
UPDATE - Win in Post #18 - Parking Eye did not contest appeal.

After I appealed (very badly) to a ParkingEYE PCN, I traversed a few sites (Citizen's Advice -> Consumer Action Group -> Parking Prankster ->MSE) before ending up here at POPLA stage and MSE seems to be the best place to get feedback on a POPLA draft appeal, which I need to submit by 12th Feb. (This Friday). As of now, I have not formulated the appeal, but summarised my approach. I will endeavour to have something down by tonight,

Background information

Summary:
According to the signs at the car park, drive was led to believe the parking rate is £10 per day, which the driver paid for at the machine. Apparently that tariff is only available if paid by phone or online and parking ticket machine rate is "£2/per hour or part there of."


Here is the chronological order of events

• 19/12/2015 Car was parked at Regency Car Park in Swiss Cottage, which advertises cheap "£10 all day parking - pay on arrival" (Evidence available)
  
  
• Ticket was bought from the machine for £10, which clearly states the date the ticket is valid for. (Evidence available)
  
  
• 23/12/2015 is the date on the PCN from ParkingEYE received owards the end of the year, stating 'Parking Charge remains outstanding', whilst displaying arrival/departure time and time in car park (6hours 10 minutes in total).
  
  
• 04/01/2016 Thinking this was a genuine mistake and before I read up on proper appeal wording, I wrote to ParkingEYE on this date and included a copy of the Parking Machine ticket, but using wording that may identify me as the driver.
  
  
• 15/01/2016 Their response was that my appeal was unsuccessful and that "insufficient time was paid for on the date", without further information on how long the overstay was.
  
  
• 26/01/2016 I started e-mailed the car park (Parking-Here.com) and after some back and forth, their statement can be summarised to:
  
  Email 1
  - Our signs clearly states the cost of parking is £2.00 per hour or part there of.
  - We do have a late payment option which enables customers to pay late for the parking and therefore avoid paying the penalty. Please call us and make a late payment option of £35.00. TL;0207 586 6581(payment can be made by Credit/Debit card over the phone).
  
  I challenged them on why they advertise £10 cheap day rate, but kept the late payment offer unchallenged. In hindsight and after some consideration, it is seems very dodgy and insulting.
  
  Email 2
  Our signs clearly states; £10.00 for the day only if paid by phone or on-line.
  
  
• I since went back to take photos of the site, including the sign that led us to pay at the parking meter. I will attach those once I have link posting rights
  
  
• This is when I started reading up on above PCN appeals and you may find me on consumer action group and parking-prankster.
  
  

POPLA approach

I have to formulate the proper wording, which I will try to complete an post tonight, but at a high level, I will argue the following

1. Ambiguous / Unclear Signage
As explained above and I will attach evidence, including one that reads (I used the same colour scheme):
Parking Ticket Machine......
Pay-By-Phone.
Just £10.00 all day.
Stay as long as you like
Up to 23:55, today.


2. No standing or authority to pursue charges nor form contracts with drivers


3. Not a genuine pre estimate of loss - case can be distinguished from Parking Eye v Beavis Unfair term
Especially, since if the car park can accept a rate at £10 a day.

4. Inadequate accuracy of ANPR camera
Seems to be a popular argument, but that would suggest that driver is aware of the time restriction. The only plausible argument is that the movie we went to see, finished before the 5 hour that £10 would cover at £2 per hour charge.

5. Unfair term

6. Other points

- The ticket does not state an expiry time. It looks as thought the ticket is valid ALL DAY at the £10 per day rate. If a time aspect is critical to the validity of the pay and display ticket, how does the customer know when the ticket expires?

- Not sure how to weave this bit in, but the £35 "late payment fee to avoid paying the penalty" statement from the car park seems suspicious.



I rejected the following avenues:
- The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability. (since it could be argued that I may have identified myself as a driver)

Coupon-mad

Are you SURE you identified yourself as driver? Did you say 'I paid £10'?

keekstuff

I identified myself as the registered keeper, but later used the sentences

"I hereby enclose a copy of the purchased parking ticket at Regency Car Park"

and worst of all:

"I have followed the terms and conditions of the car park and thus consider the matter closed".

Guys_Dad

Post the signs on tinypics and give us a link , but use hxxp rather than http to allow the lin. The signage seems your best bet so far.

keekstuff

Outside the car park
hxxp://i1157.photobucket.com/albums/p595/keekstuff/th_PH_001_zps47l7p08n.jpg

At the ticket machine
hxxp://i1157.photobucket.com/albums/p595/keekstuff/th_PH_002_zpsig3i9k9s.png

Sign that we looked at. Bit on the nose with the circles, but that's how we remember making the decision.
hxxp://i1157.photobucket.com/albums/p595/keekstuff/th_PH_008_zpstng2jaop.jpg

Ticket Purchased
hxxp://i1157.photobucket.com/albums/p595/keekstuff/th_PH_007_zps8brdvpyc.jpg

View of the ticket machine
hxxp://i1157.photobucket.com/albums/p595/keekstuff/th_PH_009_zpsvwblilyk.jpg

Tucked away on the left side
hxxp://i1157.photobucket.com/albums/p595/keekstuff/th_PH_010_zpszy68v52n.jpg

Coupon-mad

keekstuff wrote: »

I identified myself as the registered keeper, but later used the sentences

"I hereby enclose a copy of the purchased parking ticket at Regency Car Park"

and worst of all:

"I have followed the terms and conditions of the car park and thus consider the matter closed".

Not too bad...the first sentence is fine but the last sentence is a bit dodgy.

I'd continue as registered keeper at POPLA stage and use an extra appeal point: 'The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability'. You don't lose POPLA brownie points for bullets that miss and it would be up to the PPC to spot that you'd said the above and to point it out to POPLA (unlikely, if they are too thick to string a sentence together which some evidence packs do prove!).

nigelbb

Outside the car park
http://i1157.photobucket.com/albums/p595/keekstuff/th_PH_001_zps47l7p08n.jpg

At the ticket machine
http://i1157.photobucket.com/albums/p595/keekstuff/th_PH_002_zpsig3i9k9s.png

Sign that we looked at. Bit on the nose with the circles, but that's how we remember making the decision.
http://i1157.photobucket.com/albums/p595/keekstuff/th_PH_008_zpstng2jaop.jpg

Ticket Purchased
http://i1157.photobucket.com/albums/p595/keekstuff/th_PH_007_zps8brdvpyc.jpg

View of the ticket machine
http://i1157.photobucket.com/albums/p595/keekstuff/th_PH_009_zpsvwblilyk.jpg

Tucked away on the left side
http://i1157.photobucket.com/albums/p595/keekstuff/th_PH_010_zpszy68v52n.jpg

Coupon-mad

Seen that place before...

hoohoo

So, just to summarise, parkingeye charge £60 late fee, but you can also pay someone else £35 late fee?

!!!!!!!

I'd be tempted to pay the £35 just for the heck of it and submit a POPLA case stating the charge has already been paid to someone else. That will cost parkingeye £27.

But in real life, perhaps I wouldn't. How can you pay a fee to two different people? Perhaps this should be the main appeal point? The fee is not £60, but £35 as confirmed by (list of evidence here), and is not owed to parkingeye but to (list of other evidence here)

Coupon-mad

Show us your draft first, as usual here we want you to win with every point you can make.

keekstuff

Ok, here it goes. One question in the back of my mind is whether I am correctly referring to Park-Here / Parking-Here / Regency Car Park as the Landowner - maybe I should refer to them as the site agent?

Summary of evidence to be attached
1. Photo of Car Park Entrance (£10 per date, no POPLA compliant sign)
2. Picture approaching ticket machine - £10 per date or £2 per hour
3. Picture of sign - Parking ticket Machine.... pay-by-phone £10
4. Picture of ticket purchased by the driver - £10 paid on date.

=======
Dear POPLA Assessor,

I am the registered keeper of vehicle registration XXXX XXX and I wish to appeal a recent parking charge number XXXXXXX issued by ParkingEYE (Operator) for parking at Regency Car Park Swiss Cottage / Parking-Here (Landowner) using POPLA appeal code XXXXXX
I submit the reasons below to show that I am not liable for the parking charge:

1. No Keeper Liability
2. Ambiguous, inadequate and non-compliant signage Signage
3. No standing or authority to pursue charges, nor form contracts with drivers
4. The Charge is not a genuine pre-estimate of loss.
5. Inadequate accuracy of ANPR camera
6. Unfair Term
7. Other Points


1) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability

As this was a Pay and Display car park, the Parking Charge Notice (PCN) 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 of the Protection of Freedoms Act, 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.

On the PCN, it only states that the car was in the car park for a certain amount of time and that the contravention was either not purchasing a valid pay and display ticket, remaining at the car park for longer than was made permitted or by not entering registration details via the terminal.

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. The Operator has the technology to record car registrations, to collect and 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 PCN the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''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...'

The PCN specifically fails on all counts.

The registered keeper is submitting this appeal and Operator does not have the identity of the driver, who is not the registered keeper.

As Operator has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver.

A) - The unpaid parking charge that should have been requested (paragraph 9(1) of the Act) is that which was unpaid on the day before the Notice to Keeper was issued. This can only be the purportedly unpaid parking tariff and not £100 which had not been requested and which there was no facility to pay on the day before the Notice to Keeper was issued. Consequently £100 cannot be considered unpaid for the purposes of the Act. It clearly demonstrates that Operator has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered keeper asked to pay the purportedly unpaid tariff.

– Operator has failed to notify the registered keeper why the parking charge is due as is required by the Act. Their generic template PCN indicates that the vehicle supposedly stayed longer than was authorised or was not authorised at all. The Act states that the reason for the charge is made clear and again Operator has failed to comply with the requirements of the Act and consequently cannot rely on its provisions.


2. Ambiguous, inadequate and non-compliant signage

The alleged breach took place in a car park, which advertises a £10 per date rate clearly visible just outside the car park premises and clearly designed to inform customers of the rate (Evidenced 1). Furthermore, signs throughout the car park and the Parking Ticket Machine, upon approaching it, also advertise this £10 per date rate along with one tall sign regarding a £2 per hour rate (or part hour) (Evidence 2). From this, it can be reasoned that a motorist may either park for £2 per hour, pro rated hour or pay £10 for the remainder of the date. The keeper draws particular attention to the following sign (Evidence 3), which reads:

Parking Ticket Machine……
Pay-By-Phone.
Just £10.00 all day.
Stay as long as you like
Up to 23:55, today.


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.”
“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.”

With reference to above code, the signage is ambiguous, unclear and does not make it easy for the motorist to understand what the terms and conditions are upon entering the car park, nor at the Parking Ticket Machine. Contractual information made easily available on any of the signs when entering the car park such that it is unclear that a contract between the driver and ParkingEye would allegedly be formed. As a consequence, the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

Furthermore, the BPA Appendix B, with regards to Entrance signs states:

• "There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision".

• “Ideally the AOS logo should be incorporated on the entrance sign as it will show motorists that the site is managed by an organisation who have signed up to a recognised Code of Practice. However exemptions will be considered by the BPA Compliance Team if a legitimate reason is given.”

• “The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

Upon inspecting the site, keeper concludes that the Operator failed to adhere to the entrance sign guidelines, due to their signs using a varying colour scheme, no AOS logo being clearly visible at the car park entrance and that the only sign referencing the Operator is located leading down the ramp to the raised car park barrier. While driving on the street, the sign is obstructed, greater than 10 degrees away from the view of the road ahead and illegible or, while going down the ramp, legible only at a 90 degree angle.

POPLA is requested to check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. It is contended that the signs on this land, in terms of wording, position and clarity, do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach.


3. No standing or authority to pursue charges, nor form contracts with drivers

I, as the keeper, believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Operator must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has neither automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put the Operator to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Operator 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 the Operator.


4. Not a genuine pre estimate of loss - case can be distinguished from Parking Eye v Beavis Unfair term

In its parking charge notice, Operator has failed to provide sufficient evidence to justify the £100 loss the landowner might have incurred for the extra alleged additional hour, allowing for the grace period of 10 minutes, the car was parked in its property. For this charge to be justified, a full breakdown of the costs Operator 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 Operator 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 Operator 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 that Operator will 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



5. Inadequate accuracy of ANPR camera

(Not sure now if this is strictly applicable, as I am arguing a whole day's stay)

Operator 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.

6. Unfair term

The charge is quite clearly an unfair contractual term under UTCCR 1999 and is consequently unenforceable.
a. The charge of £100 is clearly grossly disproportionate to any purported loss which would only be a small parking tariff if no payment had been made at all, which evidence shows was not the case.
b. The contract causes an imbalance in the rights and obligations of the parties to the detriment of the motorist.

(Not sure about next ones, as it is argued that the understanding is payment for a whole day was made)

c. The word stay is ambiguous and must be read in the manner most favourable to the consumer. In this situation the start of the stay is most advantageous when read as the moment payment was made.
d. 'The unfairness of two timings and the operator favouring the one which is unfairly and secretly backdated and acts disadvantageously to consumers is clearly contrary to the concepts of fair dealing, openness, reasonableness and good faith'

7. Other points

(Winging this - Here is where my legalese fails me)

a. As evidenced by the purchased ticket (Evidence 4), the information provided includes car registration, purchase time and date the ticket is valid for. It does not state expiry time, and thus it can be reasoned, given the £10.00 per date advertised that an adequate payment for the advertised price has been made, as the ticket would not be valid for the following day and date.

b. Upon contact with the Landowner with regards to the PCN, they can be quoted as offering a “late payment option” to the sum of £35.00 and “therefore avoid paying the penalty”. To quote:
“Now for the good news;

We do have a late payment option which enables customers to pay late for the parkingand therefore avoid paying the penalty.

Please call us and make a late payment option of £35.00. TL;0207 586 6581(payment can be made by Credit/Debit card over the phone).

Upon receiving your payment, we will appeal to Parking Eye and request the cancellation of the PCN.

A confirmation of the cancellation and the payment will be e-mailed to you.

Parking-here.com”

This casts further doubt in Operator’s claim, as the above statement raises the following:
(i) It contradicts the £100 charge claimed to be due by ParkingEYE and thus is not a genuine pre-estimate of loss.
(ii) It is evidenced by the description used by the Landowner that the Operator’s PCN is considered a penalty and thus unenforceable in a consumer contract.

c. While the Landowner can be quoted as stating that the £10.00 rate is only applicable for pay-by-phone and internet payments, keeper argues, with reference to the ambiguous signage, that this condition is unclear and that yet still, an exchange of £10.00 for parking at the premise has been made. The Landowner / Operator, through the parking ticket machine, receives the same amount of money at the time or parking regardless of method and thus a genuine pre estimate of loss cannot be made to the sum of £35 or £100.

It is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.