POPLA response

R_Mindstate

Essentially, I stopped at a service stop on the motorway to get a coffee so I could stay awake as it was quite late (10pm). Ironically, I ended up having a nap, which meant I was around 30 minutes over the 2 hour free stay. I wasn't made aware that there would be any parking charges at that time of night - the signs were not clearly visible at all.

I have appealed in the first instance against PE, who have now rejected my appeal and provided me with a POPLA Reference Number.

I've attempted to draft my appeal to POPLA, as per the other threads on this website and was hoping somebody could take a look! (Please see following post)

Many thanks in advance!

Fruitcake

Have you complained to the motorway services manager abut this yet?

This should be done in parallel to your PoPLA appeal.

Hopefully you made the initial appeal to PE as keeper and not as driver.

R_Mindstate

I should start this appeal by explaining the situation of how I was, as the registered keeper of the vehicle ***** ****, issued with a £100 parking charge notice (PCN) from ParkingEye. I am the registered keeper and this appeal will prove that I am not liable for the parking charge.
The driver entered and parked in the Welcome Break Leicester Forest East (North) car park on 29th July 2016 at 22:00. The driver parking at that time was not aware that there would be a charge at that time of night as no clearly visible signage was present.
Two weeks later I the registered keeper received a PCN of £100.

Since receiving the parking charge I have done a lot of research into the charges from ParkingEye and have found countless sites stating it is a very common, misleading trap being set by this specific private parking company. As research shows, ParkingEye is even having a negative impact on the popular tourist locations around the UK due to errors of their own and tourists are being stung with a charge for so called ‘breach of contract’. As widely and very consistently reported online by the victims of such a parking charge, I now feel strong enough to exercise my right to appeal this to POPLA.

The grounds for this appeal are as follows:
• Signage not clearly visible;
• The ANPR system is neither reliable nor accurate;
• No genuine pre-estimate of loss;
• No landowner authority; and
• The notice to keeper is not compliant with the POFA 2012 – no keeper liability

A) Signage not clearly visible.

ParkingEye has stated in the letter declining the appeal, that a contract is formed with the driver via signage detailing the conditions under which a motorist is authorised to park. I find it hard to accept that a contract can be formed with the signage around the carpark being not clearly visible at night. The Signage is clearly not sufficiently visible which is why so many people are failing to pay for the parking and being hit with such a charge. It also seems as this has been purposely done so that people will ‘fail to comply with the terms & conditions’ for this reason it is not believed that the driver could have been entered into a contract with ParkingEye for the property of where the driver parked because they didn’t fail to comply with any of the terms & conditions.


The ANPR system is neither reliable nor accurate.

ParkingEye's evidence shows no proof of department on the alleged exit time, merely photos of a car driving out. The image is poor, it is a picture of a registration plate and a set of lights, the rest is black and nothing else can be seen. With no photo evidence of the vehicle at the exit, how can ParkingEye justify this photo as proof of time of department when it could have been taken anywhere on the car park at any time. This is not proof of leaving the car park. The exit photo is not evidence of 'parking time' at all.

There were no signs to inform a driver how the data captured by ANPR would be used which is a breach of the ICO registration and BPA CoP and fails to tell a driver that they are being timed from the entrance, rather than 15 minutes later when the contract SHOULD start, at the P&D machine (Thornton v Shoe Lane Parking is the authority on when the contract starts in a P&D car park).

C) No genuine pre-estimate of loss

The Beavis case was considered to be a 'complex' contractual arrangement with a specifically argued 'legitimate interest'. Here, ParkingEye has shown no comparable 'legitimate interest' in enforcing their charge and nor have they shown it is anything more than a standard monetary contract, where GPEOL is still a requirement (as was reiterated in the Supreme Court hearing).

The purported contract with the motorist is undoubtedly a simple financial contract where the loss is easily calculable, unlike the complex arrangement - a valuable licence to park free of charge at first, offset with a 'quid pro quo' £85 charge -in Parking Eye v Beavis. Here there is a clear financial interaction between the operator and motorist. The £100 'charge' is clearly an attempt to impose payment of a large sum in consequence of the non-payment of a very small sum, contrary to the Consumer Rights Act 2015 and contrary to Lord Dunedin's four tests for a penalty.

Parking Eye seem to be under the misapprehension - and desperately hoping - that POPLA Assessors will swallow the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. They also seem to cling to the hope that POPLA will believe that the UTCCRS (now within the Consumer Rights Act 2015) do not apply somehow, to any parking charge case!

With reference to The Consumer Rights Act 2015 (Schedule 2 part 1 para 6) the charge is very clearly an unenforceable contract term because the operator is seeking to impose a charge in compensation that is vastly disproportionate to an (easily calculated) allegedly 'unpaid' parking tariff. Courts are obliged to ALWAYS give consideration to the fairness/unfairness of any contract or term.

As regards the Beavis case, it was made plain that in more complex contracts (in that case, a free car park with no monetary sum paid per hour) the trader 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 and this case is not a 'complex' contractual arrangement at all.

The Beavis case is not relevant to any other car park except that precise situation and location in that unique case (as the SC Judges were at pains to Tweet as soon as the astonishing decision was made public). A thorough review of the findings from the Supreme Court and the Court of Appeal hearings, shows that case has no application to a Pay and Display car park whatsoever.

There is no 'legitimate interest' in enforcing a punitive charge against a motorist who had attempted to pay to park for the time actually parked. In this case the driver had no idea that they would later be unfairly charged when they actually tried to make the payment for parking but couldn’t could to faulty machinery. This is not the same as in the Beavis case where the driver was considered to have understood and accepted all terms which were 'clear and very prominent' and where there was no tariff in play to make it a standard contract. This charge is simply being enforced in an attempt to punish the motorist for no fault of their own.

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment and the preceding Court of Appeal judgment, as regards any type of 'simple financial contract' such as this one where there is a quantified tariff. After all, both ParkingEye and the driver are citing the words from the earlier hearing as a support for the cases. This case is an unfair penalty and clearly differs from the 'Beavis v Parking Eye' judgment.

D) No landowner authority

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.

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.

E) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.

At this Welcome Break 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. 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!

In the NTK before me I can see that the driver either not purchased the appropriate parking time or remained at the car park for longer than permitted. This does not create any certainty of terms, it leaves a keeper to wonder how the charge of £100 can differ so much from the price of parking time equalling to the sum of £3 clearly showing this has NOT cost ParkingEye anywhere near the £100 charge or even the £60 for the 14 day reduced charge. This Operator has the technology to record car registrations, to collect/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).

These are the omission from POFA 2012 in the NTK issued:
''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, as at a time which is—

(i)specified in the notice; and

(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4))”

The NTK specifically fails on all counts. It even fails to describe the specific circumstances for such a parking charge amount due.

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.


This concludes my POPLA appeal.
Yours faithfully,

R_Mindstate

Hi @Fruitcake,

Yep, thanks to this site I did lol

As for contacting the motoway services manager - I am struggling to get through to them, but am continuing to try.

Half_way

What MSA was this?

R_Mindstate

@Half_way

It was Leicester Forest East

Coupon-mad

Looks like quite an old POPLA template, so this needs some work till we help you perfect this. I would avoid 'no loss' being said at all. Have a search again for 'Parking Eye POPLA' and look for more recent results. There are loads.

Your 'no landowner authority' argument can be beefed up, as per those recent examples you will find that include 7.3 of the CoP quoted. Search 'section 7.3' on this board, to find them.

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).

Was the PCN received within 14 days? What is the 'date issued' and what was the date of event?

Does it include the warning about keeper liability after 29 days? Or not?

Castle

R_Mindstate wrote: »

@Half_way

It was Leicester Forest East

Short term parking at LFE is £5 for between 2 and 6 hours.
https://www.welcomebreak.co.uk/about-us/parking/

beamerguy

It's amazing that when you drive on motorways there are clear big signs

"TIREDNESS CAN KILL -- TAKE A BREAK"
http://jimhorne.co.uk/wp-content/uploads/2013/06/tiredness_can_kill_jim_horne.png

When you do, you get scammed by Parking Eye

What do the Dept of Transport / Highways Agency want us to do ?

Something you may like to contact the AA about

I am sure they are aware of these vermin but brush it under the carpet.

We all know that the DOT are pretty useless when it comes to motorways.

The M3 South from the M25 still under construction as a "smart motorway"

The only smart thing is for the contract company and it is rare to seen anyone working. Guess they must be scamming the DOT then

pappa_golf

beamerguy wrote: »

It's amazing that when you drive on motorways there are clear big signs

"TIREDNESS CAN KILL -- TAKE A BREAK"
http://jimhorne.co.uk/wp-content/uploads/2013/06/tiredness_can_kill_jim_horne.png

When you do, you get scammed by Parking Eye

What do the Dept of Transport want us to do ?

I am sure they are aware of these vermin but brush it under the carpet

UK law states you can have a max of 2 hours , before infestation takes place


services tent to be about 30 miles apart , so in theory you can have 8 hrs sleep and still not exceed 120 miles

Umkomaas

pappa_golf wrote: »

UK law states you can have a max of 2 hours , before infestation takes place


services tent to be about 30 miles apart , so in theory you can have 8 hrs sleep and still not exceed 120 miles

Provided you wake up from your first sleep! :rotfl: