PCN Radisson Blu Stansted

Elysander

Hi,

I now have my popla draft and would be grateful for any comments.(the NTK was served late and doesn't have the POFA wording)

[FONT=Arial, sans-serif]Dear Sir/Madam,[/FONT]


[FONT=Arial, sans-serif]

PCN Number: xxxxxxx

Vehicle Registration Number: xxxxxxxx

POPLA Code XXXXXXXXXX[/FONT]


[FONT=Arial, sans-serif]
I write to lodge my appeal to POPLA regarding the above-detailed Parking Charge Notice issued to me by Parking Eye as a Notice to Keeper in respect of an alleged breach of parking terms and conditions at Radisson Blu Stansted Airport car park on X day X month 2016. I confirm that I am the vehicle’s keeper for the purposes of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). [/FONT]


[FONT=Arial, sans-serif]I set out below the principal reasons why I am not liable for this parking charge[/FONT]


[FONT=Arial, sans-serif]1. The Notice to Keeper fails to satisfy the keeper liability requirements of the Protection of Freedoms Act 2012. [/FONT]

[FONT=Arial, sans-serif]Schedule 4 [/FONT][FONT=Arial, sans-serif]paragraph 9 [/FONT][FONT=Arial, sans-serif]of the Protection of Freedoms Act [/FONT][FONT=Arial, sans-serif]20[/FONT][FONT=Arial, sans-serif]12 spec[/FONT][FONT=Arial, sans-serif]ifies [/FONT][FONT=Arial, sans-serif]the [/FONT][FONT=Arial, sans-serif]strict requirements[/FONT][FONT=Arial, sans-serif]that [/FONT][FONT=Arial, sans-serif]must [/FONT][FONT=Arial, sans-serif]be [/FONT][FONT=Arial, sans-serif]compl[/FONT][FONT=Arial, sans-serif]ied [/FONT][FONT=Arial, sans-serif]with i[/FONT][FONT=Arial, sans-serif]n order [/FONT][FONT=Arial, sans-serif]to establish keeper liability. [/FONT][FONT=Arial, sans-serif]One of the requirements is that a Notice to Keeper must be served within 14 days after the vehicle was parked [/FONT][FONT=Arial, sans-serif]The initial N[/FONT][FONT=Arial, sans-serif]otice to Keeper[/FONT][FONT=Arial, sans-serif]is dated X/X/2016 [/FONT][FONT=Arial, sans-serif]and [/FONT][FONT=Arial, sans-serif]states [/FONT][FONT=Arial, sans-serif]the 'date of event' [/FONT][FONT=Arial, sans-serif]to be[/FONT][FONT=Arial, sans-serif]X/X/2016, [/FONT][FONT=Arial, sans-serif]which was 16 days earlier.[/FONT][FONT=Arial, sans-serif]Therefore, Parking Eye have failed to comply with the [/FONT][FONT=Arial, sans-serif]regulations laid out in POFA 2012[/FONT][FONT=Arial, sans-serif]. [/FONT][FONT=Arial, sans-serif]As there has been no admission as to who may have parked the car and no evidence of this person has been produced by [/FONT][FONT=Arial, sans-serif]Parking Eye[/FONT][FONT=Arial, sans-serif], [/FONT][FONT=Arial, sans-serif]I cannot be held liable as the registered keeper.[/FONT]

[FONT=Arial, sans-serif]2. Lack of grace period

[/FONT] [FONT=Arial, sans-serif]The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that there are two mandatory grace periods. [/FONT]

[FONT=Arial, sans-serif]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]
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''Prior to parking:-

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 [/FONT]
[FONT=Arial, sans-serif]them a grace period to read your signs and leave before you take enforcement action.

Upon returning to the vehicle:-

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.''[/FONT]

[FONT=Arial, sans-serif]The first/arrival grace period is undefined in the CoP but without intellectual dishonesty it must, on its own, surely be reasonable to construe this should be another ten minutes at least, since the BPA believes that the far shorter/easier journey of just getting into the car and leaving, should reasonably be allowed 'at minimum of 10minutes'.[/FONT]
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The time in car park is noted to be 0 hours 11minutes. Therefore, taking the above in to account, It would be perfectly reasonable and logical to expect thisto be within thegrace period in order for the driver to drive in, wait/queue and look for a space on site, park, lock the car then get out and go and read the signs and make a decision whether to stay.

[/FONT] [FONT=Arial, sans-serif]3. No standing or authority to pursue charges nor form contracts with drivers[/FONT]
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I believe that Parking Eye have 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, Parking Eye 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 no 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 Parking Eye Ltd to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Parking Eye 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 Parking Eye.[/FONT]

[FONT=Arial, sans-serif]4. Poor lighting/Inadequate signage

[/FONT] [FONT=Arial, sans-serif]Due to their high position[/FONT][FONT=Arial, sans-serif]ing, poor lighting ,[/FONT][FONT=Arial, sans-serif]overall small size and [/FONT][FONT=Arial, sans-serif]the barely legible size of the small pri[/FONT][FONT=Arial, sans-serif]nt, [/FONT][FONT=Arial, sans-serif] the signs in this car park are very hard to read.[/FONT][FONT=Arial, sans-serif]the [/FONT][FONT=Arial, sans-serif]driver would have [/FONT][FONT=Arial, sans-serif]had [/FONT][FONT=Arial, sans-serif]little or no opportunity to read and understand the terms and conditions. [/FONT][FONT=Arial, sans-serif]Any photographic evidence provided by Parking Eye to POPLA [/FONT][FONT=Arial, sans-serif]and myself [/FONT][FONT=Arial, sans-serif] will no doubt show the signs in daylight or with [/FONT]the misleading aid of a close up camera and the angle may well not show how high the signs are. As such, I require Parking Eye to state the height of each sign , and provide photographic evidence of these signs, taken in the hours of darkness without photoshopping ,cropping or the use of flash showing where the signs are positioned.

[FONT=Arial, sans-serif]5. Inadequate accuracy of ANPR camera

An 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 Parking Eye 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 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.

Furthermore, as described in the BPA Code of Practice under paragraph 21.1, “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.”

Additionally, expanding from point 4 above, Section 18.3 of the BPA Code of Practice states that any “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

Considering the observations made in point 4(Ambiguous, inadequate and non-compliant signage) above, I argue that Parking Eye has failed to meet the minimum standards set out in sections 21.1 and 18.3 of the BPA Code of Practice. While the available sign advises that the “car park (is) monitored by ANPR systems”, it does not inform the motorist what it is using “the data captured by ANPR cameras” for, as required under Section 21.1 of the BPA Code of Practice nor is it therefore “easy to understand”, as required under Section 18.3 of the BPA Code of Practice.[/FONT]



[FONT=Arial, sans-serif]6.[/FONT][FONT=Arial, sans-serif] ParkingEye v Beavis is not applicable to provide a rationale for a 'standard economic contract' like this one. This is a disproportionate and unconscionable penalty, not based upon the alleged quantifiable loss nor commercially justified. [/FONT][FONT=Arial, sans-serif]

In its parking charge notice, [/FONT][FONT=Arial, sans-serif]Parking Eye [/FONT][FONT=Arial, sans-serif] has failed to provide sufficient evidence to justify the £100 loss the landowner might have incurred for the alleged contravention.
The contract entered into between the driver and [/FONT][FONT=Arial, sans-serif]Parking Eye [/FONT][FONT=Arial, sans-serif] is a simple consumer contract- [/FONT][FONT=Arial, sans-serif]a[/FONT][FONT=Arial, sans-serif]n offer of parking if the driver pays a tariff.

This makes plain that the sum of £100 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors, and is consequently unenforceable.

As this is a simple contract, any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss.

If [/FONT][FONT=Arial, sans-serif]Parking Eye [/FONT][FONT=Arial, sans-serif] believe that inadequate payment was made, [/FONT][FONT=Arial, sans-serif]which the pcn fails to make clear, [/FONT][FONT=Arial, sans-serif] their demand should be for any unpaid tariff as that would be their only loss. £100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed parking tariff. If [/FONT][FONT=Arial, sans-serif]Parking Eye [/FONT][FONT=Arial, sans-serif] believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of this. 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.

I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of ParkingEye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places.

This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty, simply because the time within the site, without actually parking, was well within the short prescribed grace periods required by the BPA CoP, compliance with which was considered a pre-requisite, by the Supreme Court Judges[/FONT]
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A contractual term which imposes the requirement to pay a disproportionately large sum when there was no contract formed at all because the driver left and did not park is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of ParkingEye v Beavis the judgment in which is irrelevant in this situation.

Any reliance on the Supreme Court judgment in the case of ParkingEye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility . As previously mentioned in this situation there is no such justification.

It is respectfully requested that this parking charge notice appeal be allowed[/FONT]
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Yours Failthfully [/FONT]

salmosalaris

Point 6 is one of the early post Beavis drafts . This has been improved more recently . I'll see if I can dig something out


Also you need to expand upon the requirement and FAILURE to inform that ANPR is used and what data it captures is used for . Nowhere is a motorist informed that the alleged contract begins at the moment the vehicle is captured at an arbitrary point of which the motorist is unaware . There is no lawful contract . Make this a point on its own with its own heading

salmosalaris

In paid parking situations I'm using the below as an alternative to the old gpeol argument .( as this is a court defence you could replace defendant with appellant and claimant with operator )



The Claimant has no legitimate interest in enforcing their charge , the charge is disproportionate , a penalty and an unenforceable Unfair contract term and this case can easily be distinguished from Parking Eye v Beavis

The purported contract entered into by the motorist is a simple consumer financial contract. An offer of parking is made in return for payment of a small tariff. The Claimant is seeking to impose a charge for breach of contract. The loss for failure to make this payment is easily calculable as that unpaid tariff. Anything in excess is clearly a penalty and Unfair contract term .

a. The Claimant may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The defendant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty , despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

“97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;- i

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers; - i

d. The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and
I
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In this case the vehicle would have been fully entitled to park as it did had payment been made ( although it is denied adequate payment was not made )The above justifications are irrelevant and conspicuously absent. The only interest the Claimant has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise .The Claimant cannot argue that a legitimate interest is simply ensuring that payment is made , i.e. simply ensuring the terms of the contract are not breached. If that were the case any contractual term designed to deter breach by imposing a penalty for failure to do so would require no other legitimate interest other than the wish to deter breach , this is clearly a nonsense . It is also a nonsense that in this situation the legitimate interest of the landowner and retailers is the efficient management of the car park as the vehicle was welcome to park as it did simply on payment of a small tariff and it is only an alleged failure to make that payment which the Operator is objecting to . The landowner and retailers were not affected in any other way other than the alleged loss of this small tariff. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of a few pounds. The charge is clearly a penalty following the judgment of the Supreme Court.

The reference in the Supreme Court judgment to "overstaying" relates to parking beyond a time which the vehicle was welcome to and therefore a deterrent charge was necessary to prevent this to protect the interests described above. This cannot be equated to "overstaying" in this case which simply means allegedly failing to make payment of a tariff for a period in which the vehicle is fully welcome to park .

This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states :

"43. It is clear that the purpose of the £85 parking charge is to deter those who use the car
park from overstaying beyond the free permitted two hours. So, Mr Hossain
submitted, the case is clear and the parking charge provision is unenforceable.
44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract by one party or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.
45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays
no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land. The operator affords the driver a free facility. That facility is, of course, of economic value to the driver, as well as of convenience, in assisting the driver to
visit the shops in the shopping centre which the car park serves. It is thus useful to the driver, being close to the shops, and free. It is also useful to the shopkeepers, in encouraging visitors, and in particular in encouraging a turnover of visitors because of the two hour limit. A car owner cannot simply come to the car park and park there all day. To do that would be to clog up the facility and to prevent those arriving later from using the park for its intended purpose.
46. The terms of use of the car park need, therefore, to provide a disincentive to drivers which will make them tend to comply with the two hour limit. That is afforded by the
parking charge of £85. It would not be afforded by a system of imposing a rate per hour according to the time overstayed, unless that rate were also substantial, and well above what might be regarded as a market rate for the elapsed time, even if the market rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. It seems to me that the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with, merely on the basis that the contractual provision is a disincentive, or deterrent,
against overstaying. When the court is considering an ordinary financial or
commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should
prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome.
The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)
6 Bing. 141 at 148:
“But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”


This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the Claimant and motorist .There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff ( had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner , not the Claimant, may be entitled. The demanded charge is , without intellectual dishonesty, a clearly unenforceable penalty .

b. With reference to The Consumer Rights Act 2015 Schedule 2 part 1 para 6 ( or UTCCR 1999 SCHEDULE 2 REGULATION5(5) 1 (e) the charge is clearly an unenforceable contract term as the Claimant is seeking to impose a charge in compensation that is vastly disproportionate to the parking tariff of only a few pounds that the Claimant believes should have been paid. This is easily distinguished from the case of Parking Eye v Beavis as there was no financial transaction in that free car park so this point was not considered or relevant .

Elysander

Hi,

I've changed number 6 to reflect Salmonsalaris's points above. I have also added in ANPR Data Capture point

[FONT=Arial, sans-serif]The signage fails to properly inform drivers that ANPR cameras are in use, and also how the data captured will be used[/FONT]

[FONT=Arial, sans-serif]The BPA Code of Practice paragraph 21.1, states “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.” Signage that includes the words ' car park monitored by ANPR' in small writing with a camera symbol next to it would make most reasonable people think that cctv is in use for security and they have no idea that the images are for parking enforcement. The signs do not properly 'inform a driver how the data captured will be used' which is a strict requirement of the ICO registration for data handlers using ANPR cameras and it is also contrary to the BPA CoP. The driver had no idea they were being timed as they enter because the cameras are high, small and unremarkable/hidden and no signs were seen before parking which would tell a driver before parking that they were ALREADY being timed. Nor was the driver informed that the data would be used to hold a registered keeper liable under the POFA because again, there are no such signs of information as a car drives in. [/FONT]

paulstevens64

Hi OP


Just a note to say that when I won my POPLA appeal for this site, it was on "no contract"


Also, the evidence pack provide by PE showed a map for car park layout and signage, and 40 odd photo's of signs. The map and the signs were 6 months out of date. The layout had changed (May last year I think). So this should be firmly rebutted.


There are no signs to inform you that there is a pay car park until you actually drive in, and are on ANPR. So the pre and post grace periods must apply.

Elysander

paulstevens64 wrote: »

Hi OP


Just a note to say that when I won my POPLA appeal for this site, it was on "no contract"


Also, the evidence pack provide by PE showed a map for car park layout and signage, and 40 odd photo's of signs. The map and the signs were 6 months out of date. The layout had changed (May last year I think). So this should be firmly rebutted.

There are no signs to inform you that there is a pay car park until you actually drive in, and are on ANPR. So the pre and post grace periods must apply.

Thanks for letting me know. Did they not even provide a witness statement saying there was a contract?

Congratulations on your well deserved win

Elysander

Just wanted to say thank you to everyone who contributed to this thread and provided me with expert advice. POPLA have allowed my appeal on the grounds that the NTK did not comply with PoFA 2012 as Parking Eye failed to meet the deadline of schedule 4. Despite knowing from the outset that the NTK had failed PoFA, Parking Eye still contested my appeal and provided a 50 page 'evidence pack' in which they stated that the NTK was compliant with PoFA and included over 20 pages of photos showing signage in broad daylight (despite the appeal requesting photos of the signage in the hours of darkness), 2 photos (taken on a very sunny summers day) were of the former car park entrance that was closed in early 2015. A scan of a 3 page 'agreement' naming the Radisson Blu as the 'customer' was provided, but was heavily redacted and of such poor quality most of it was unreadable.

Ralph-y

well done .......:j

would you kindly consider posting up your full POPLA reply as it may well help others .....

(both here on your thread) and on the POPLA decisions thread


Ralph:cool:

Umkomaas

Elysander wrote: »

Just wanted to say thank you to everyone who contributed to this thread and provided me with expert advice. POPLA have allowed my appeal on the grounds that the NTK did not comply with PoFA 2012 as Parking Eye failed to meet the deadline of schedule 4. Despite knowing from the outset that the NTK had failed PoFA, Parking Eye still contested my appeal and provided a 50 page 'evidence pack' in which they stated that the NTK was compliant with PoFA and included over 20 pages of photos showing signage in broad daylight (despite the appeal requesting photos of the signage in the hours of darkness), 2 photos (taken on a very sunny summers day) were of the former car park entrance that was closed in early 2015. A scan of a 3 page 'agreement' naming the Radisson Blu as the 'customer' was provided, but was heavily redacted and of such poor quality most of it was unreadable.

Great result.

Lazy templated response by PE - it's just too easy for them. The number of people who seek forum advice before appealing to POPLA is just the tip of the iceberg, the vast majority of those not seeking advice will be intimidated by the evidence pack and either don't rebut it, or just capitulate and pay at that point.

Losing the odd POPLA case is just part of their business model risk. But from your point of view - it's a WIN, well done.

Guys_Dad

Having just stayed at this hotel, I noticed the signs as I always do when in a PPC run car park.

The signs around the car park quote £100 charge but the last one before you get to the hotel entrance reads £90.

Seems like that could be a winning point for anyone caught there.