Parking Eye - POPLA Appeal basis

RedVanDriver

Hi there,


PCN from Parking Eye;
Alleged Offence Date: 20-06-16
Date Issued: 12-07-16 (as stated at top of PCN) (22 days after offence)


Because: driver entered car park at 12.36pm, departed 15.13pm (2 hours, 37 mins)
Maximum authorised stay: 2 hours


Basis for original appeal: Parking time recently changed from 3 hours to 2 hours; inadequate signage to indicate this either before, or after the change (full text at bottom)


Appeal rejected because "Maximum authorised time exceeded"


But: the following wording in the rejection letter is;
"If you appeal to POPLA and your appeal is unsuccessful you will not be able to pay the discounted amount in settlement of the Parking Charge, you will be liable to pay the full amount." (My emphasis).
Surely this is inferring keeper liability?


"Please be aware that this parking charge was not issued under the Protection of Freedoms Act 2012 and therefore refer you to Section C of the BPA Code of Practice which is most applicable. Here it states that:
33.2 To give drivers early notice of your claim............must apply no more than 28 days after the unauthorised parking event"


This section, and the quote offered, refers to Operational Requirements in Scotland and Northern Ireland. Taken from the BPA site (sorry, can't post links)
The alleged office took place in England.

Can anyone confirm that this allows for a POPLA appeal on the basis of No Keeper Liability.

Many thanks for your thoughts!

-RedVan

Original Appeal Letter:

I am writing with regards to your PCN issued on 12/07/2016. As the registered keeper I would like to appeal this charge on the following points.
1. There is a 14 day limit imposed under Schedule 4 of the Protection of Freedoms Act 2012 for the issuing of parking charges such as this one. As the ‘Date of Event’ is specified as 20/06/16 you have not met the criteria necessary to hold the Registered Keeper liable for this charge.
2. The maximum free time authorised is 2 hours on the ‘Date of Event’, however, upon contacting this store it has been confirmed that this was a very recent change from 3 hours. It is unclear when exactly your terms and conditions changed and by what means, if any, they were communicated to potential users of the land.

In addition I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs are in very small print and the terms are not readable to drivers before they park.
3. Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. I believe the driver may well be eligible for cancellation and you have omitted clear information about the process for complaints including a geographical address of the landowner.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge. I have kept proof of submission of this appeal and look forward to your reply.

Coupon-mad

Alleged Offence Date: 20-06-16
Date Issued: 12-07-16 (as stated at top of PCN) (22 days after offence)

Yes you can definitely use 'no keeper liability' as point #1, then include the new 'no evidence that the appellant was the individual liable' POPLA appeal point for cases where a reg keeper is the appellant, which is shown in the latest posts in the POPLA Decisions thread (updated this past weekend).

I've also updated the 'unclear signs' argument (again it's posted in POPLA Decisions yesterday) but edit some of it out if 'your' signs actually match the yellow/black signs in the Beavis case! And you will need to add in the point that the time limit has recently changed but the driver was unaware (quote the BPA CoP about clearly signing enforcement of new restrictions so that people familiar with a car park will see the change).

And have a 'no landowner authority' argument as per those recent examples you will find that include 7.3 of the CoP quoted.

But: the following wording in the rejection letter is;
"If you appeal to POPLA and your appeal is unsuccessful you will not be able to pay the discounted amount in settlement of the Parking Charge, you will be liable to pay the full amount." (My emphasis).
Surely this is inferring keeper liability?

"Please be aware that this parking charge was not issued under the Protection of Freedoms Act 2012 and therefore refer you to Section C of the BPA Code of Practice which is most applicable. Here it states that:
33.2 To give drivers early notice of your claim............must apply no more than 28 days after the unauthorised parking event"

This section, and the quote offered, refers to Operational Requirements in Scotland and Northern Ireland. Taken from the BPA site (sorry, can't post links)
The alleged office took place in England.

Good points. I would complain to the DVLA and BPA by email above the above.

RedVanDriver

Any thoughts?
_____




Dear Sir/Madam,





Re: Parking Charge Reference number


Vehicle registration:





I am the registered keeper of the above vehicle and have received the referenced Parking Charge Notice from Parking Eye.





My appeal to Parking Eye was rejected and they gave me POPLA code

---

.





The basis of my appeal is:

• No Keeper Liability
• No New Evidence Presented That The Appellant Was The Individual Liable
• Change Of Restrictions Inadequately Signed
• No Landowner Authority
• No Genuine Pre-Estimate Of Loss
  
  By way of expansion on the above points;
  

• No Keeper Liability
  
  The Appeal rejection states:
  "Please be aware that this parking charge was not issued under the Protection of Freedoms Act 2012 and therefore refer you to Section C of the BPA Code of Practice which is most applicable. Here it states that:
  33.2 To give drivers early notice of your claim............must apply no more than 28 days after the unauthorised parking event"
  
  Note that section 33.2 refers to Operational Requirements In Scotland and Northern Ireland. The alleged breach of contract occurred in England.
  
  Under the BPA Code Of Practice Section 21.7 (Not making use of Keeper Liability provisions) it states:
  “You must post the parking charge notice to the keeper as soon as possible. Your target is to send the parking charge notice to the keeper of the vehicle no more than 14 days after receiving the keeper data from the DVLA.”
  The Parking charge was issued on xxxxxx, this 22 days after the alleged event (xxxxx) and received by myself, the registered keeper, several days later than this.
  
  Additionally, under the BPA Code Of Practice Section 21.8 it states:
  ….If you are not making use of the keeper liability provisions of POFA or you are unable to achieve the deadlines specified therein, your letter must not reference POFA or state that the keeper is liable.
  
  The Appeal rejection letter from Parking Eye states:
  "If you appeal to POPLA and your appeal is unsuccessful you will not be able to pay the discounted amount in settlement of the Parking Charge, you will be liable to pay the full amount."
  
  This is clearly, by use of the word ‘you’ an attempt to infer keeper liability. And an infraction of the BPA Code Of Practice Section 21.8.
  
  
• No New Evidence Presented That The Appellant Was The Individual Liable
  
  There has been no admission as to who was driving at the time of the alleged breach of contract with Parking Eye. As the registered keeper I am entitled to not name the driver and not be held lawfully liable as Parking Eye are not using, nor complying, with Schedule 4 of the POFA. Only through the strict adherence to Schedule 4 of the POFA can a keeper appellant be deemed liable to pay any Parking Charge Notice.
  
  Parking Eye have not submitted any further evidence that I (as an individual) am somehow personally liable for their parking change.
  
• Change Of Restrictions Inadequately Signed
  
  My Appeal to Parking Eye stated;
  “The maximum free time authorised is 2 hours on the ‘Date of Event’, however, upon contacting the store with whom the carpark is associated it has been confirmed that this was a very recent change from 3 hours. It is unclear when exactly your terms and conditions changed and by what means, if any, they were communicated to potential users of the land.”
  
  The BPA Code Of Practice Section 18.11 States:
  “…Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage.”
  
  Regular users of the carpark will become accustomed to a set of terms and conditions and Parking Eye have not submitted any evidence as to when and how they made the change in conditions clear.
  
• Lack of standing/authority from landowner
  
  My Appeal Stated:
  “…understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. I believe the driver may well be eligible for cancellation and you have omitted clear information about the process for complaints including a geographical address of the landowner.”
  
  The appeal rejection letter states:
  “Parking Eye can confirm that it only operates on sites that are situated on private land are not council owned and that Parking Eye has written authority to operate and issue Parking Charge Notices on all its sites from the landowner.”
  
  The BPA Code Of Practice Sections 7.1 & 7.2 set out therequired authorisation wording. Parking Eye have failed to provide any evidence in support of their assertion within the appeal rejection, that it has any written authority and as such have failed to prove that they neither have the authority to issue Parking Charge Notices nor persue them. Any evidence submitted by Parking Eye should comply fully with the terms set out in Section 7.1 and 7.2
  
• No Genuine Pre-Estimate Of Loss
  
  The BPA Code of Practice Section 19.5 states:
  “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.”
  
  As this car park had free parking and Parking Eye have failed to provide evidence that the car park was full at the time of the event, there can be no quantifiably demonstrable loss to Parking Eye, and therefore no loss flowing from the parking event.
  
  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.
  
  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 Parking Eye charges the same penalty for overstaying a 3 hour period, as for a 2 hour period, on the same site, and further, that the 3 hour free parking period has recently been reinstated 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.
  

Coupon-mad

Remove this point as it was killed by the infinite wisdom of the Supreme Court Judges in ParkingEye v Beavis in November 2015. Get rid of it completely:

No Genuine Pre-Estimate Of Loss

And point #2 isn't the longer template, deliberately written using POPLA's own words back at them, which I have shown last weekend as a template in 'POPLA Decisions'. I suggest you copy it verbatim.

And you could have the template 'unclear signs' looong and detailed appeal point that I also put up in POPLA Decisions as a template this weekend. You could have that instead of your point #5 as long as 'your' signs are not the same as the yellow/black uncrowded/fairly clear signs in the Beavis case (as linked in that appeal point itself, when you read it in POPLA Decisions).

Have a compare with this one, also at the same stage as you & grab the best bits:

https://forums.moneysavingexpert.com/discussion/5509591

HTH