POPLA appeal - Aire Street Leeds, January 2016

eah42

Dear All,

I have received a Parking Charge Notice from ParkingEye for "parking" in Aire Street, Leeds for 12 minutes, without paying.

My situation is pretty much identical to that experienced by user Hy6gc in the following thread:
forums.moneysavingexpert.com/showthread.php?t=5379088

Fortunately, this means that the vast majority of the hard work has been done for me already due to Hy6gc's successful appeal (thanks for that!), and I fully intend to submit an almost identical appeal as it is equally appropriate to my situation.

I am, however, intending to add one additional paragraph underneath the sub-heading No standing or authority to pursue charges nor form contracts with drivers, draft wording as follows:[FONT=&quot]
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[FONT=&quot]I also note from the Leeds City Council website that permission 13/04009/FU, authorized on 24 January 2014, gives the Operator of the car park permission to use the Aire Street site as a short stay car park – having enquired further, I understand that this permission runs until 16 January 2016. The parking charge notice provided by Parking Eye relates to an alleged parking incident on 17 January 2016, after the expiry of this existing permission. Planning application 15/07448/FU deals with renewal of this permission for use of the site as a short stay car park, and is currently “pending consideration”. I am therefore unclear whether the Operator currently has the right to operate the site as a car park, let alone pursue charges. The latest planning application documents also include two objections to renewal of the Aire Street site’s use as a car park, one of which specifically relates to unfair Parking Charge Notices.
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I would be extremely grateful if you could share your thoughts on this addition to the appeal - in particular, is it worth including at all and if so could it be improved?

Many thanks!

Coupon-mad

Yes I would include that, I would probably include it in the usual appeal point saying you question PE's landowner authority.

Plus have a read of what happened in this case:

https://forums.moneysavingexpert.com/discussion/5373260

Maybe that OP will forward to you a sneak preview of what the evidence pack will look like so you can see what to expect. Funnily enough I wouldn't make it too obvious to PE in the POPLA appeal that you know about the date of contract issue or put them to strict proof over it because they might just improve their evidence pack!

But it would be useful to be ready to know what to look for and rebut it all well, if they do contest this appeal. The rebuttal of any evidence is really important to get right and we keep trying to improve on the 'impossible to consider this contract is similar to the Beavis case' argument so don't stick with what you've got at rebuttal stage, come & ask to get final feedback at the time.

Examples of strong POPLA appeals v PE regarding P&D car parks are on the first 3 or 4 pages of the forum right now, you should spot them by the thread titles & certainly read them to improve your appeal points.

Hate to say it but Hy6gc's appeal is already a bit old and dated, certainly needs to be stronger re the Beavis case and we now also have an extra point about no signs saying how the ANPR data will be used (we know POPLA have found in favour of people on that basis).

Was the first appeal in the name of the keeper? If so you need 'no keeper liability' showing all the suggested NTK flaws, as shown in very recent PE ones on the forum (not just saying they fail to name the 'creditor' because that's wrong anyway and misses the real flaws).

Show us your draft.

eah42

Thanks Coupon-mad. My current draft is below, which I've created by stitching together wording from existing appeals on the forum:

[FONT=&quot]Dear Sir or Madam,

POPLA reference: xxxxxxxxxx[/FONT]

[FONT=&quot]Parking charge reference number: [/FONT][FONT=&quot]
xxxxxxxxxxxxx

Vehicle registration number:
xxxxxxxx

I was issued with a parking ticket on **/**/16 by Parking Eye, but I believe it was issued unfairly. I declined the company’s invitation to name the driver, which is not required of me as the keeper of the vehicle. I will not be paying the demand for payment for the following reasons: [/FONT]


[FONT=&quot]1) [/FONT][FONT=&quot]The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability

[/FONT][FONT=&quot]As this was a Pay and 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.

On the Notice to Keeper it only states that the car was in the car park for a certain amount of time and that the contravention was an overstay or failure to pay.

This does not create any certainty of terms, and 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 NTK 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...'
NTK is not compliant, for example re this requirement:
The NTK specifically fails on all counts.

The registered keeper is submitting this appeal and Parking Eye do not have the identity of the driver, who is not the registered keeper.

As Parking Eye 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 Parking Eye 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.

– Parking Eye have 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 Parking Eye have failed to comply with the requirements of the Act and consequently cannot rely on its provisions.[/FONT]
[FONT=&quot]

2) Lack of grace period

[/FONT][FONT=&quot]The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers are “…parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.” (18.5)[/FONT][FONT=&quot]

Furthermore, The BPA Code of Practice requires that additional time upon entry and further time upon exit, is to be allowed. It is wholly unreasonable and a breach of the CPUTRs (misleading action) for ParkingEye to ignore their industry code, which states re grace periods:

''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 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 11 minutes.''[/FONT]

[FONT=&quot]The time in car park is noted to be 0 hours 12 minutes and I feel that this constitutes a reasonable grace period to allow an informed decision and, following the decision not to park in this car park, to leave without charge. As a result, the 3 above conditions have not been met by ParkingEye. If this is felt not to be the case, I put it to ParkingEye to provide strict proof to the contrary and their reasons for going against their industry regulator’s best practice.[/FONT]

[FONT=&quot]I would also mention the case in 2014 at Altrincham County Court: 3JD08399 PE v Ms X. Fistral Beach. It was found that 31 minutes driving around looking for a space was not classed as parking and therefore there was no contravention of the parking terms and conditions. There is therefore a clear precedent demonstrating that short periods of time between entering and exiting a car park should not necessarily be treated as “parking”. This is a distinction that an ANPR system is incapable of making, as outlined under point 4) below.[/FONT]
[FONT=&quot]

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

[/FONT][FONT=&quot]The 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, 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 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=&quot]I also note from the Leeds City Council website that permission 13/04009/FU gives the Operator of the car park permission to use the Aire Street site as a short stay car park – having enquired further, I understand that this permission expired in January 2016. I believe the parking charge notice provided by Parking Eye relates to an alleged parking incident after the expiry of this existing permission. Planning application 15/07448/FU deals with renewal of this permission for use of the site as a short stay car park, and is currently “pending consideration”. I am therefore unclear whether the Operator currently has the right to operate the site as a car park, let alone pursue charges. The latest planning application documents also include two objections submitted via public access to renewal of the Aire Street site’s use as a car park, one of which specifically relates to unfair Parking Charge Notices.

[/FONT]
[FONT=&quot]4) The ANPR system is unreliable nor accurate.[/FONT][FONT=&quot]

ParkingEye's evidence shows no parking time, merely photos of a car driving in and out. 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 synchronized to the pay and display machine clock nor even to relate to the same parking event. [/FONT]

[FONT=&quot]The ANPR cameras are not identified upon entry to the car-park. Although these systems have a reported high accuracy rate, there is well recorded evidence of them being prone to error and inaccuracy. Photographs produced as evidence by them, can be easily digitally altered. They do not prove the identity of the driver. Simple entry and exit photographs purported to be from the stated car-park do not prove unquestionably that the vehicle actually; entered and left it; parked within its boundaries, and remained parked within it for the alleged time. On the day in question I believe the vehicle exited within the grace period time discussed under point 2) of this appeal. Aire Street is a busy road to exit onto, particularly on a Sunday evening when the parking incident is alleged to have occurred, so the driver could well have been sat in the car at the exit for a period of time until it was safe to exit the car park.

As keeper I therefore cannot discount that the driver may have driven in, realised it was pay and display then driven out. The BPA even mention this as an inherent problem with ANPR on their website;
[/FONT][FONT=&quot]britishparking.co.uk/How-does-ANPR-work[/FONT][FONT=&quot]

[/FONT][FONT=&quot]
The BPA's view is: 'As with all new technology, there are issues associated with its use:
Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'


5) The charge was not based upon a GPEOL and there is no justification for breach of the duty to allow grace periods

This case is an unfair penalty. The Claimant may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case, however this case clearly differs from the 'Beavis v Parking Eye' judgment as this was a pay and display carpark. 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. Anything in excess is clearly a penalty and Unfair contract term

The purported contract with the motorist is a simple consumer financial contract where the loss is easily calculable, unlike in Parking Eye v Beavis. There is a clear financial interaction between the Claimant and motorist, whereby an offer of parking is made in return for payment of a small tariff. .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, and therefore the loss suffered for allegedly failing to make this payment is easily calculable as that unpaid tariff.. The demanded charge is, without intellectual dishonesty, a clearly unenforceable penalty , an amount that is extravagant and unconscionable and disproportionate when compared to the allegedly unpaid tariff. .The charge is for an alleged (but denied) breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified that this non-landowning third party can claim a sum in excess of any damages. However, no such GPEOL or justification can apply here.

Therefore, it is confidently argued that this charge (£100) is hugely disproportionate to any alleged unpaid tariff. If Parking Eye believe that inadequate payment was made (which their PCN fails to make clear and which is denied by the driver) 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 unpaid tariff. The offer to reduce the charge to £60 if paid within the first 14 days further suggests that this is an arbitrary penalty sum, rather than a genuine pre estimate of their loss, as any loss cannot possibly vary depending on when the charge is paid. If Parking Eye believes their charge is a genuine pre-estimate of their loss it is demanded they produce a detailed and itemised breakdown of how this has been calculated.

With reference to The Consumer Rights Act 2015 Schedule 2 part 1 para 6 ( or UTCCR 1999 SCHEDULE 2 . 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 allegedly unpaid parking tariff .



5) Unclear, inadequate and non-compliant signage

Due to their high position, overall small size, being unlit and the barely legible size of the small print, the signs in the car park are difficult to read. This was compounded by the timing of the arrival at the car park. At this time of the evening, unlit signage is particularly difficult to read and prolonged the decision making process in this case.
Furthermore, the signage is ambiguous and unclear because the entire sign is about 'PARKING TARIFFS' (not 'total stay') and the sign creates no obligations except to:

- Motorists must enter their full, correct vehicle registration when using payment machine.

The only place the word 'stay' is mentioned on the sign is where it talks about maximum stay of 14 hours, the rest is all about 'parking time'. So as the Pay & Display machine is the 'point of sale' and the P&D ticket is the receipt upon which an ordinary consumer would rely for the parking time, there was no contravention of the sign, as the option to park was not taken up.

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 (which is denied here, due to the option of parking not being taken up).


6) Without a contract

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award Parking Eye Limited could seek would be damages. As there was no damage to the car park there was no loss to them or the landowner at all and therefore there should be no charge.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point. [/FONT]

Coupon-mad

Brilliant stitching together! :T

The only thing to change the title & detail of is this one, as far as I can see:

6) Absent any contract, only the landowner could claim nominal damages for trespass

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate [STRIKE]award[/STRIKE] [STRIKE]Parking Eye Limited[/STRIKE] sum that a landowner (only) could seek would be damages. As there was no damage to the car park there was no loss [STRIKE]to them or the landowner [/STRIKE]at all and therefore there should be no charge; any charge at all could only be nominal - to cover actual loss. Charges cannot be issued under the tort of trespass by a third party with no title in the land (this was confirmed in the Beavis decision).

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

Coupon-mad

I couldn't see this and am a bit tired. Has your ANPR or signage point, got the point about:

No signs are displayed saying how the ANPR data that is being captured will be used, which is a breach of the ICO rules and the BPA CoP. This glaring omission in required information that is required to be supplied by a data handler/ANPR operator means a driver has no idea they are already being timed even when driving in, reading signs and deciding not to enter into any contract (they find out too late they are already being bound by it and have been assumed to have 'accepted' a contract before they have even had an opportunity to read and learn about it).

eah42

Many thanks! I'll make these additions - pretty much word-for-word - and then hopefully I'm good to go.