POPLA - Draft letter for review

gareth1971

I made an earlier thread, but the title was not very clear so I am making a new thread with the latest draft of my POPLA letter below. I would very much appreciate any comments on this draft. My appeal must be lodged by 27th May. I am unsure whether it is better to do this by post or online.

Photos of all the signs in the car park can be seen at imgur.com/a/9CQlR

We parked at 175 Preston Road, Brighton (a medical practice). We were going to 177 Preston Road (NHS Clinic). We did not notice any of the signs at the time. The system at 175 is that there is no charge for patients of 175 who must enter their reg numbers in to a terminal in the reception of 175. We did not enter 175. This was during daytime hours.

POPLA Letter Draft

[Registered keeper’s address]

19th May 2016
Parking on Private Land Appeals
PO Box 70748
London
EC1P 1SN
Dear Sir/Madam,
Re: Parking Charge Reference number [xxxxxxx]
Vehicle registration: [xxxxxxxx]
I am the registered keeper of the above vehicle and have received the above demand from Parking Eye.
My appeal to Parking Eye was rejected and they gave me POPLA code [xxxxxxxxx].

The Parking Charge Notice and rejection letter both refer to “175 Medical Centre Patients, Brighton” which is not an actual address.

I am guessing that the PCN is referring to “Beaconsfield Medical Practice, 175 Preston Road, Brighton, Brighton and Hove, BN1 6AG” as the parking signs at that address state “For use by patients of 175 Medical Centre only”.
The basis of my appeal is:

1) The Charge is not a genuine pre-estimate of loss

Their sign states the charge is for “failure to comply with the terms and conditions” so Parking Eye must prove the charge to be a genuine pre-estimate of loss.

As this car park had free parking, there can be no loss to the Parking Eye, and therefore no loss flowing from the parking event.

Parking Eye cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver’s alleged breach.

There is no loss flowing from this parking event because the car park was not full. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. Parking Eye would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

Given that ParkingEye charge the same (i.e. nothing) for a 30 minute stay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.

ParkingEye cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a ‘fishing licence’ to catch motorists and some arrangements where they have pay and display, and others which are free car parks.

This case is an unfair penalty and differs from the 'Beavis v ParkingEye' judgment.

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.

Unlike in Beavis, it is confidently argued that this charge has been artificially inflated and ParkingEye have failed to disengage the 'penalty rule' by virtue of a want of good faith and a failure in their duty to deal fairly with consumers and a failure to follow the requirements of their industry Code of Practice. £100 is hugely disproportionate to any alleged unpaid tariff and there was no unpaid parking time in any case.

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned ‘commercial justification’ statement they may have devised afterwards (since this would not be a pre-estimate):

The British Parking Association Code of Practice uses the word ‘MUST’:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.”

2) Lack of signage – no contract with driver

The signs were not visible from a distance and the words are unreadable. I put Parking Eye to strict proof otherwise; as well as a site map they must show photos of the signs as the driver would seem them on entering the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. The driver did not notice any signs; there was no consideration/acceptance and no contract agreed between the parties.

The signs state “For use by patients of 175 Medical Centre only”. Leaving aside the fact that “175 Medical Centre” is not an actual place, neither the keeper, nor the driver are patients of the medical centre located at 175 Preston Road Brighton, therefore no contract is created with the driver who was attending another building.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: “Signs should be readable and understandable at all times, including during the hours of darkness…when parking enforcement activity takes place at those times. This can be achieved…by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit…should be made of a retro-reflective material similar to that used on public roads”.

Appendix B of the BPA Code of Practice also 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.

Section 18 of the British Parking Association (BPA) Code of Practice requires operators to fully comply with the following on entrance signage:

18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore,
as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

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 their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

If a driver can't read the sum of the parking charge (the £40) before parking - because the font is too small/the sign unremarkable and too high to read from a driver's seat - then they cannot have agreed to it. Also, a keeper appellant cannot be bound by inadequate notice of the charge either (POFA Schedule 4 requires 'adequate notice' of the sum of the parking charge, not just vague illegible small print, however near the car).

The well-known and oft used 'Red Hand Rule' in the binding case of J Spurling Ltd v Bradshaw [1956] applies, where Denning LJ stated: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient''. In Mendelson v Normand and Thornton v Shoe Lane which were both about parking, this was also clearly stated by Denning LJ:

‘The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue…was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.’

i.e. even if a document or notice is ostensibly under the nose of a consumer, the onerous term (e.g. £100 charge) needs to be VERY explicit and prominent. Not hidden among small print on a sign, regardless of whether that sign is in the vicinity of the car. This was reiterated by Denning LJ in Thornton v Shoe Lane Parking [1971] where he held that the courts should not hold any man bound by such a condition unless it was ''drawn to his attention in the most explicit way''. Small print on an illegible, unremarkable and pale sign on a wall is not enough and is not on a par with the very clear signs 'with the charge in large lettering' as was explored and vital to the decision in Parking Eye v Beavis.

Furthermore, these signs are nothing like those offering a licence to Mr Beavis (ParkingEye Vs Beavis), allowing him to park under 'clear' terms. With reference to the following cases District Judge Glen opted to hear all three cases in a single hearing:

B4GF26K6 PCM (UK) v Mr B (£914.67 claimed)
B4GF27K3 PCM (UK) v Mr W (£1559.82)
B4GF26K2 PCM (UK) v Ms L (£1067.15)

These cases were dismissed and DJ Glen started by referring to the Beavis transcript, at paras. 94, and 189/190, which made it clear that it was agreed by all parties that there was a contract between PE and Beavis. He said that analysis didn’t apply in this case, as the notice was absolutely prohibitive, and didn’t communicate any offer of parking. The landowners may have a claim in trespass, but that wasn’t under consideration here.

3) Lack of standing/authority from landowner

Parking Eye has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Parking Eye to strict proof of the contract terms with the actual landowner (not a lessee or agent). Parking Eye have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Parking Eye are entitled to pursue these charges in their own right.

I require Parking Eye to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for Parking Eye merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

4) Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:

“18.1.3 Objections are less likely…if a term is specific and transparent as to what must be paid and in what circumstances.”

An unlit sign of terms placed too high to read, is far from ‘transparent’.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.” Furthermore, Regulation 5(1) states that: “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”.
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: “A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

And as for whether average consumers 'would have agreed' to pay £100 had there been negotiations in advance, the answer here is obviously no. There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £100 to this parking firm. Their charge relies upon unseen terms, not clear contracts, and should not be upheld.


5) The ANPR system is unreliable and neither synchronised nor accurate

ParkingEye’s ANPR records show no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. 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 that evening.
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. If there was such a sign at all then it was not prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.
In addition I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any 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.
So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common “time synchronisation system”, there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so “live” is not really “live”. Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR “evidence” from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary and to show how these camera timings are synchronised with the pay and display machine.

Conclusion
I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put Parking Eye to strict proof to justify that their charge, under the circumstances described.
I therefore respectfully request that my appeal is upheld and the charge is dismissed.
Yours sincerely,
[the registered keeper’s signature]
[the registered keeper’s name]

Coupon-mad

We parked at 175 Preston Road, Brighton (a medical practice)

Yep, I am familiar with that PE cash cow trap of a car park!

My appeal must be lodged by 27th May.

In practice, POPLA codes last a few days longer and ALWAYS over a full weekend so take your time and keep this thread live over the Bank Holiday long weekend by replying and showing us new drafts, if you are around to work on it. Don't rush this and don't think it has to go in on Friday.

Trust me. I have submitted POPLA appeals a few days late and certainly a Friday expiring Code can go in on a Monday, they are not removed over a weekend and last just over 30 days in fact.

You MUST take your time and read newer POPLA appeals because you can't use 'The Charge is not a genuine pre-estimate of loss'. That went out six months ago with the Beavis case.

Search the forum for 'ParkingEye NHS POPLA' to find a 2016 NHS POPLA appeal that has stronger points. I know this isn't a Hospital but the fact it's an NHS car park can be factored into the appeal showing the charge is contrary to the Government Policy on NHS car parks.

Sign here:

http://imgur.com/a/9CQlR

'PATIENTS ONLY - all medical centre patients must register at reception'.

The 'warning' sign has its BACK to the entrance from the road?! Your last photo proves it!

gareth1971

Thanks for your advice.

I find this incredibly baffling and frustrating. Reading the various POPLA letters does not lead me to much understanding. Advice seems to change frequently, and I find it hard to tell what is still relevant.

The comment that I received on my last draft was:

"Looks ok to me, but as this is ParkingEye I think you do need to strengthen your dismantling of the Beavis case, rather than just the one sentence you've put in. POPLA Assessors are virtually making the Beavis case for PPCs if they see an 'it's Beavis, innit' within the PPCs evidence pack.

With new POPLA we are less confident in saying 'Yep, that appeal will be upheld', so the stronger you make it, the better, especially by blocking off any holes the PPC might exploit and giving POPLA chapter and verse 'Janet and John' fashion (and remember, from what we've seen, few if any Assessors are legally qualified/trained, many seem to have come from a call centre background, hence the need to feed them as one would an infant).

Here is a case that I've bookmarked to offer up to posters grappling with Beavis issues. Use what of it makes sense to your case. Hope it helps."

I then added what I thought was "what of it makes sense to your case." without really understanding what "strengthen your dismantling of the Beavis case" really means, and now I get your advice:

You MUST take your time and read newer POPLA appeals because you can't use 'The Charge is not a genuine pre-estimate of loss'. That went out six months ago with the Beavis case.

Search the forum for 'ParkingEye NHS POPLA' to find a 2016 NHS POPLA appeal that has stronger points.

I have no way to assess what is considered to be "stronger points" compared to what I already copy-pasted together.

This is an earlier draft POPLA appeal letter that you (Coupon-mad) posted. Is this a good place for me to start?

forums.moneysavingexpert.com/showthread.php?p=70461877#29

On the point of not having to get the appeal in by the deadline, why would I take any chances with this when I don't need to? I would rather get it done in the next day or two.

Coupon-mad

Because if you rush it you will regret it. You will get more help over a few days and into the weekend as lots of us have day jobs.

And trust me, you are NOT taking chances with a POPLA code over a mere weekend.

forums.moneysavingexpert.com/showthread.php?p=70461877#29

Yes that was the sort of POPLA appeal I had in mind to adapt. It's NHS and it's ParkingEye...although I know that is not a sprawling site with lots of entrances so parts of the appeal won't be relevant. It's not exactly the same but has the NHS stuff and the BPA CoP and something about the Beavis case that should work for your case too.

You need to point out to POPLA in your signage point that the warning sign has its back to the road and entrance!

We will look out for your next draft and if you do get it finished sooner than the weekend then fine but don't rush it.

gareth1971

Here is my latest draft POPLA appeal letter. Any advice would be appreciated.

With my letter, should I also submit my own photos of the signage to POPLA?

Signage can be seen here: imgur.com/a/9CQlR

PCN can be seen here (personal details redacted): imgur.com/S2RAayD

I have scanned the PCN because I am not sure how relevant the section 5 below is to my case and so if anyone needs/wants to look at the PCN, they can.


DRAFT POPLA LETTER

I am the registered keeper of the above vehicle and have received the above demand from Parking Eye.
My appeal to Parking Eye was rejected and they gave me POPLA code [xxxxxxxxx].

Background

The Parking Charge Notice and rejection letter both refer to “175 Medical Centre Patients, Brighton” which is not an actual address.

I am assuming that the PCN is referring to “Beaconsfield Medical Practice, 175 Preston Road, Brighton, Brighton and Hove, BN1 6AG” as the parking signs at that address have the same partial address in their wording “For use by patients of 175 Medical Centre only”.

I am the registered keeper and my appeal is regarding an incident where my car was parked in a car park that had free parking, no pay and display and no time limits.

The signs in this car park are easily missed and both the driver and passenger were left unaware of any contravention.

There are 2 large buildings next to each other at 175 and 177 Preston Road, Brighton. Both have cars parked at the front. Both are NHS buildings and both can be reasonably described as "Medical Centres" or "Clinics".


This is my appeal:

1. Unclear, inadequate and badly placed signage at the entrance and throughout the site

There are 4 parking signs in the car park outside 175 Preston Road. One at the entrance. One at the exit and 2 either side.

i) Entrance Sign

At the entrance there is one sign that cannot be read when approaching by car and I put this operator to strict proof of how the entrance to the hospital appears from a car.

When approaching the entrance to 175 Preston Road from the north (as we did) the driver is turning right across the path of on-coming traffic on a busy road and across the path of pedestrians walking along a busy pavement. There is also a low wall either side of the entrance to avoid.

No driver could be reasonably expected to read this sign when entering:

a) From the other side of the road, the entrance sign is too far away to be read when waiting for a gap in the incoming traffic and waiting to avoid pedestrians.
b) When turning in, coming towards the sign the drivers attention must be on minding the on-coming traffic and the pedestrians and the entrance walls and any cars exiting.
c) When close enough to read, the sign is so high (approx 3m) that it is out of the view of the driver of a normally sized car passing by.
d) Stopping to read the sign would obstruct the pavement and the sign is so high that it cannot be read from the drivers seat.

The entrance sign states "Patients Only - All medical centre patients must register at reception - This car park is private property, see signage in car park for terms & conditions"

Even studying this sign carefully it does not mention "Beaconsfield Medical Practice, 175 Preston Road" and as we were attending a medical centre at 177 there was nothing on the entrance sign to make us think we could not park in the car park beyond that sign.

ii) Exit sign

The exit sign states "Warning - This car park is for patients attending an appointment at 175 medical centre only - Failure to comply with the terms & conditions depicted on the signage may result in a parking charge notice being issued"

The exit sign "Warning" is only noticeable when leaving the car park after the fact of any "Failure to comply..." so is pointless and egregious.

iii) Side signs.

These signs are placed close to the front edge of the parking spaces and on high poles (approx 2.5m) so that when exiting from a vehicle the driver will be unlikely to notice the closest sign because it is way overhead and the sign on the opposite side will be too far away to read even the larger type. The small print is too small to be read without being very close.

There is nothing about VRNs being captured by ANPR at the point of entry; nothing about how the ANPR data will be used to determine if the driver parked or left and returned a second time.


2. No indication where the photos were taken - at the entrance or within the site

No evidence has been shown to prove where the photos were taken, nor even that the 'in' and 'out' images are from corresponding cameras. This is not speculation; this exact kind of misleading evidence was submitted by ParkingEye to a court last month regarding a Hospital site with multiple cameras, car parks and routes:

07/03/2016 Case B7FC00H1 – Parking Eye v Mrs B, before District Judge McKinnell at St Albans

parking-prankster.blogspot.co.uk/2016/03/parkingeye-lose-in-court-accuse-drivers.html

ParkingEye's own evidence in that similar case was essentially worthless. Their pictures showed the vehicle entering the Patient & Visitor Car Park but leaving a completely different car park. I submit this may be the case here and I put ParkingEye to strict proof of which camera the 'in' and 'out' photos were taken from, including map evidence showing the markings on the road and/or visible barriers or buildings in the photographs, to prove their assertion.

I also require their complete listing of every time my vehicle was captured that day, since I contend the car was driving around - and even circled round and revisited and re-read the entrance signs to locate the drop-off area to pick up the patient, according to the driver.

The vehicle was not parked in the pay & display area nor any permit bay, at all. ParkingEye need to prove this was the case or their PCN is not properly given.

If these photographs were taken at the main entrance to an area which contains 'permit/authorised vehicles', 'pay and display, and free 20 minutes parking in a drop off bay, then it is unclear as to which contravention is alleged. On the Notice To Keeper it only states that the car was in the grounds 30 minutes and the two photos do not show where the timings were captured.

It is evident, that when entering the site in question, there are multiple routes for a vehicle to take. As the operator is issuing a parking charge on the basis that the driver of the appellant’s vehicle did not comply with the terms and conditions of a particular car park (one of several on site) the burden of proof rests with the operator in showing that a contravention of the terms and conditions in a particualr car park took place (i.e. that the car actually parked there in a place where permits or P&D was a requirement).

The BPA even mention this as an inherent problem with ANPR on their website:

britishparking.co.uk/How-does-ANPR-work

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...'

3. No standing or authority from the landowner to enforce this charge/this contravention

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.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name.

I suggest that ParkingEye are certainly not empowered by the NHS Trust to sue patients and visitors for parking in an NHS car park (that provides free parking) that is very close to an NHS building where the patient has an appointment.

In addition, Section 7.3 states:

“The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement.''

I put ParkingEye to strict proof of compliance with all of the above requirements and specifically relating to drop off/pick up activity, not just a general redacted contract about entering a registration number in a terminal which was not used.

4. No legitimate interest - this charge is not like that in the Beavis car park/contract.

The signs state “For use by patients of 175 Medical Centre only”. Leaving aside the fact that “175 Medical Centre” is not an actual place, neither the keeper, nor the driver are patients of the medical centre located at 175 Preston Road Brighton, therefore no contract is created with the driver who was attending the medical centre at 177.

This case is an unfair, unenforceable penalty and differs from the 'ParkingEye v Beavis' judgment in every single fact, from signage to the rationale/justification of the charge.

The Beavis decision is not a silver bullet, not for any operator and not for ParkingEye. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule IN THAT CASE ONLY.

It may be useful to refer to but it cannot be twisted to strike out the majority of private parking ticket appeals.

The unusual contractual licence to park that was offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from anything considered by the courts before.

As regards the Beavis case, it was made plain that in more complex contracts, an agent or landowner must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'.

There is no commercial justification for an agent of an NHS Trust to profit by disproportionately fining a visitor to a NHS building for parking in the closest NHS car park that offers free parking.

Not only that, this sort of fine imposed in a Hospital car park disregards the NHS 'Car Parking Principles' first put forward by the Department for Health in 2014 and subsequently updated and established as clear Government Guidance, in 2015:

gov.uk/government/publications/nhs-car-parking-management-htm-07-03

gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

''Charges should be reasonable for the area.''

''Trusts should consider installing ‘pay on exit’ or similar schemes so that drivers pay only for the time that they have used. Additional charges should only be imposed where reasonable and should be waived when overstaying is beyond the driver’s control.''

''Details of charges, concessions and additional charges should be well publicised including at car park entrances, wherever payment is made and inside the hospital. They should also be included on the hospital website and on patient letters and forms, where appropriate.''

''NHS trusts should publish:

- their parking policy
- their implementation of the NHS car parking principles
- financial information relating to their car parking
- summarised complaint information on car parking and actions taken in response''

''Contracted-out car parking
NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.

NHS organisations should act against rogue contractors in line with the relevant codes of practice where applicable.

Contracts should not be let on any basis that incentivises additional charges.''

''Reasonable implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (eg commuters), or who persistently flout parking regulations (eg blocking entrances). A period of grace should normally be applied before a parking charge notice is issued.''

None of the above was the case with this NHS Trust/ParkingEye. I would argue that this makes this charge unreasonable and unconscionable in the extreme.

The ParkingEye v Beavis judgment makes clear that the Courts would consider the disproportionate charge in this case to be the very essence of 'unconscionable' due to the circumstances of the case. It is a clear penalty because it is just that, punitive, with no other compelling commercial rationale nor even unambiguous evidence to support its imposition.

In ParkingEye v Beavis at 32, it was made clear that a test has to be considered in every case and an interest will'RARELY' extend beyond the usual penalty rule (Lord Dunedin's four tests):

''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the [...parking company...] in the enforcement of the primary obligation. The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Lord Mance at 152 added: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties [...] had every opportunity to appreciate what they were agreeing must at least be a relevant factor.’’

POPLA must consider the rationale and reasoning behind a parking charge in each case, as well as the signage, because the Beavis decision depended upon both.

If an operator fails to show both apply, then the ParkingEye v Beavis case CANNOT be applied and POPLA cannot just roll out a standard paragraph about it, every time. The penalty rule remains engaged and parking charges are not 'properly given' if they are merely punishing an alleged (denied) breach but remain unjustified by way of any other legitimate commercial interests.

5. Keeper Liability nor established - The Notice to Keeper is not compliant with the POFA 2012

The registered keeper is submitting this appeal and ParkingEye do not have the identity of the driver.

ParkingEye have failed to correctly and unambiguously 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 was not authorised at all. The Act states that the reason for the charge must be included in a Notice.

This operator has failed to comply with the following requirements of the Act and consequently cannot rely on its provisions for keeper liability:

''9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(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.''

As ParkingEye has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act cited above, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver and there is no lawful way I can be held liable as registered keeper.

Umkomaas

Looks a lot better to me. I've read through it all. As I don't know the specific car park or layout or where 175 is relative to 177 (nor will the assessor I suspect) I'm not crystal clear as to the logistics on the day. You might want to review your description in the opening preamble and ask yourself how it paints the picture accurately enough for the complete stranger.

Do you have photos, or Google StreetView links/downloads to attach?

Do you have proof (appointment letter) of your appointment at 177? Attach copy with appeal.

Your final appeal paragraph stating the NtK fails to meet PoFA requirements for keeper liability - was this a straight copy and paste from a previous POPLA appeal, or have you written the paragraph after a thorough analysis of your specific NtK? If it's a straight c&p then re-check yours against paragraph 9 of Schedule 4.

As I've said previously, POPLA at this stage is far less predictable than in the past, so unable to say - 'that's a winner', but it looks a lot better.

Await other comments, but if the forum is busy you may not get them in time, so leave it as long as possible to allow comments, but don't miss getting this through to POPLA on time.

HTH

DollyDee_2

Quote

i) Entrance Sign

At the entrance there is one sign that cannot be read when approaching by car and I put this operator to strict proof of how the entrance to the hospital appears from a car.

When approaching the entrance to 175 Preston Road from the north (as we did) the driver is turning right across the path of on-coming traffic on a busy road and across the path of pedestrians walking along a busy pavement. There is also a low wall either side of the entrance to avoid.

No driver could be reasonably expected to read this sign when entering:

a) From the other side of the road, the entrance sign is too far away to be read when waiting for a gap in the incoming traffic and waiting to avoid pedestrians.
b) When turning in, coming towards the sign the driver's attention must be on minding the on-coming traffic and the pedestrians and the entrance walls and any cars exiting.
c) When close enough to read, the sign is so high (approx 3m) that it is out of the view of the driver of a normally sized car passing by.
d) Stopping to read the sign would obstruct the pavement and the sign is so high that it cannot be read from the drivers seat.

The entrance sign states "Patients Only - All medical centre patients must register at reception - This car park is private property, see signage in car park for terms & conditions"

Even studying this sign carefully it does not mention "Beaconsfield Medical Practice, 175 Preston Road" and as we were attending a medical centre at 177 there was nothing on the entrance sign to make us think we could not park in the car park beyond that sign.

End Quote.

In the first paragraph, change "hospital" to clinic.

I don't think you need "(as we did)".

Apostrophe needs inserting in "drivers".

Possibly change the last paragraph above to:

Even studying this sign carefully it does not mention "Beaconsfield Medical Practice, 175 Preston Road" and as a passenger in the car was attending a medical centre at 177, there was nothing on the entrance sign to inform the driver that they could not park in the car park beyond that sign.

gareth1971

Umkomaas wrote: »

Looks a lot better to me. I've read through it all. As I don't know the specific car park or layout or where 175 is relative to 177 (nor will the assessor I suspect) I'm not crystal clear as to the logistics on the day. You might want to review your description in the opening preamble and ask yourself how it paints the picture accurately enough for the complete stranger.

Do you have photos, or Google StreetView links/downloads to attach?

Do you have proof (appointment letter) of your appointment at 177? Attach copy with appeal.

Your final appeal paragraph stating the NtK fails to meet PoFA requirements for keeper liability - was this a straight copy and paste from a previous POPLA appeal, or have you written the paragraph after a thorough analysis of your specific NtK? If it's a straight c&p then re-check yours against paragraph 9 of Schedule 4.

As I've said previously, POPLA at this stage is far less predictable than in the past, so unable to say - 'that's a winner', but it looks a lot better.

Await other comments, but if the forum is busy you may not get them in time, so leave it as long as possible to allow comments, but don't miss getting this through to POPLA on time.

HTH

Thanks very much for your comments.

Signage including Google Streetview can be seen here: imgur.com/a/9CQlR

PCN can be seen here (personal details redacted): imgur.com/S2RAayD

I have scanned the PCN because I am not sure how relevant the section 5 below is to my case and so if anyone needs/wants to look at the PCN, they can.

My final paragraph is a copy and paste. I am struggling to understand how it applies or does not apply to my NtK which is why I posted the PCN to imgur.

I do have the appointment letter for 177 which I can upload to POPLA but does it matter the name mentioned on the letter - could that be construed as admission of the identity of the driver? It is the keeper's name on the appointment letter, obviously I am not saying who the driver was.

Today (27th) is the deadline per the POPLA code checker although coupon-mad is adamant that I should take more time if need:

Coupon-mad wrote: »

Because if you rush it you will regret it. You will get more help over a few days and into the weekend as lots of us have day jobs.

And trust me, you are NOT taking chances with a POPLA code over a mere weekend.

We will look out for your next draft and if you do get it finished sooner than the weekend then fine but don't rush it.

gareth1971

DollyDee wrote: »

In the first paragraph, change "hospital" to clinic.

I don't think you need "(as we did)".

Apostrophe needs inserting in "drivers".

Possibly change the last paragraph above to:

Even studying this sign carefully it does not mention "Beaconsfield Medical Practice, 175 Preston Road" and as a passenger in the car was attending a medical centre at 177, there was nothing on the entrance sign to inform the driver that they could not park in the car park beyond that sign.

Thanks very much, I will incorporate your suggestions and I will post an updated draft today.

I am still hoping to have my appeal sent today.

gareth1971

I have just been over the sticky newbies thread again before posting this and I am still unsure about the point below. Sorry if I have missed something.

I am doing a dry-run of my online submission to POPLA and at Stage 1 it says:

Why are you appealing your parking charge?

You may select more than one reason for appealing your parking charge. You may be required to provide evidence to support your case, so we recommend you only select genuine grounds for appeal. Most successful parking appeals are made on the following four grounds.

1) My vehicle was stolen

2) I was not improperly parked

3) The amount requested on the parking charge notice is not correct.

4) I was not the driver or the registered keeper of the vehicle at the time of the alleged improper parking.

5) Other grounds for appeal

Sorry if I am being dim, but am I correct in thinking that, in my case I should choose 3 and 5 and ignore 4? Should I also choose 2?

Or just 5 only?

Coupon-mad

I would show the medical appointment to show that you were a 'patient' (which does not make you the driver, you could be a passenger).

I would add here:

There are 2 large buildings next to each other at 175 and 177 Preston Road, Brighton. Both have cars parked at the front. Both are NHS buildings, both can be reasonably described as "Medical Centres" or "Clinics" and both have ''patients''.

Under your point on the entrance sign after where it finishes, add the following:

Even studying this sign carefully it does not mention "Beaconsfield Medical Practice, 175 Preston Road" and as we were attending a medical centre at 177 there was nothing on the entrance sign to make us think we could not park in the car park beyond that sign. We could not have known that the sign did not apply to us as 'patients' attending the adjacent NHS medical centre, nor that the vague words: 'register at reception' created any more obligation than just that. There was certainly nothing communicated about inputting our VRN and crucially, nothing about a parking charge of any amount, let alone £100.

You can see the sign and the two NHS Buildings in this picture:

http://imgur.com/a/9CQlR

It is not disputed that I was certainly a ''patient'' (evidence atached of my appointment at the adjacent NHS Building).

We relied upon the entrance sign allowing parking for 'patients' which had no caveat except to 'register' at reception. Well, we did 'register' by reporting at the appropriate reception where our appointment was made. No location was stated on that entrance sign and neither did it mention inputting or recording a numberplate at a particular reception desk or keypad. No other meanings of 'patient' or 'register at reception' or 'medical centre' can be inferred from that entrance sign and under the trite law doctrine of contra proferentem, the interpretation that most favours a consumer must apply. And that interpretation would reasonably allow a patient of either medical centre to park without any charge as long as they report to reception - which we did.



And important - there is no such thing as an EXIT SIGN which isn't appropriate in a private car park (not unless it was pay and display and it said something like: 'reminder: did you pay and display?' which this isn't!).

So change ii) Exit sign to:

ii) 'Warning' sign

[STRIKE]The exit[/STRIKE] This oddly-positioned (twisted round?) sign states "Warning - This car park is for patients attending an appointment at 175 medical centre only - Failure to comply with the terms & conditions depicted on the signage may result in a parking charge notice being issued"

[STRIKE]The exit[/STRIKE] But this sign setting out a (far too late to form part of any contract) "Warning" is only noticeable when leaving the car park after the fact of any alleged "Failure to comply..." so is pointless and egregious. Further, that sign was not even seen before parking but it does not state the £100 charge as a figure. Even a driver who happened to look back 180 degrees over their shoulder and read that sign before parking would not be reasonably deemed to have 'agreed' to pay any sum at all. In the ParkingEye Ltd v Beavis case, it was held (as regards the signs) that Mr Beavis had agreed to pay £85 because that sum was in the largest lettering, clearly and prominiently displayed on simply and unambiguously-worded signage, displayed all over the car park - including at the entrance - showing the £85 and clear terms of the licence to park. Not so here.


Under 'side signs' get rid of the end bit which makes no sense as you are not alleging the car left and returned (don't muddy the waters):

iii) Side signs.

These signs are placed close to the front edge of the parking spaces and on high poles (approx 2.5m) so that when exiting from a vehicle the driver will be unlikely to notice the closest sign because it is way overhead and the sign on the opposite side will be too far away to read even the larger type. The small print is too small to be read without being very close.

There is nothing about VRNs being captured by ANPR at the point of entry; nothing about how the ANPR data will be used. [STRIKE]to determine if the driver parked or left and returned a second time. [/STRIKE]


And I would remove point #2 altogether as this is a small car park site and the wording doesn't make sense for this site.

Finally, change:

Keeper Liability nor established

to

Keeper Liability not established