Popla appeal Help needed please

georgiafay

Hi everyone,
I am in desperate need of help with what to include in my Popla appeal and was wondering if one of you ever so knowledgeable and helpful people would help me please? :A

My appeal was rejected by parking eye (obviously lol) and must now be escalated to Popla.

I have spent the best part of two days reading numerous threads on popla appeals, both on this site and on PePIPoo and I am still confused as to which points are relevant for my appeal to carry weight and the wording to use.

I am the registered keeper but NOT the driver.

The main point for appeal is concerning grace periods, as the driver overstayed the allotted 2 hours "parking time", by 18 minutes.

This time is quoted from the ANPR cameras but does not show ACTUAL time parked or allow for the grace periods set by the BPA.

I know the BPA have now changed their wording for the grace periods (i believe it was changed on december 13th?) but this case occurred BEFORE the change.

The car park in question was extremely busy and it was on a weekend, with congested traffic coming in and out of the car park.



The driver was a genuine shopper at the retail park and can include a bank statement (blanking out name of course) showing purchases from multiple stores at the retail site, so the info I found from the parkingCowboys site may apply?



"This one is applicable to ParkingEye tickets. In ParkingEye’s customer contract, it may include a ‘genuine customer’ exemption. This means that if a genuine customer gets ticketed, the ticket can be cancelled. After all, the reason a land owner employs a parking company is to stop non-customers abusing the car park – and not to deter genuine customers from using the site.

Sometimes ParkingEye will cancel a ticket if the motorist can provide some evidence that they were a genuine customer – such as a receipt. However, Parking Eye do not advertise this fact since a large proportion (probably the majority) of the tickets they issue are against genuine customers, and so this would impact their profits signifcantly.

This however, can be used at the POPLA stage too. For example, you could state “I was a genuine customer [using shops X, Y, Z] and had I known of the genuine customer exemption in the Parking Eye contract with the landowner, I would have requested my ticket to be cancelled”. Obviously this claim is strengthened somewhat by the provision of evidence such as a receipt or credit card statement."





The driver says they may also have left the car park for over an hour during that period, so 'double-dipping' may also have been a factor that has not been picked up by the ANPR cameras?
Is it worth mentioning that?



The only template I have found that is close to my drivers situation was written by 'driver in london' on the other site BUT their appeal failed, even though the comments after that said that Popla was in the wrong and he needs to escalate it to the lead assessor.


Does anybody know of an example appeal or template that I could modify and use??

My husband thinks I should just pay the reduced rate charge to parking eye and avoid all the hassle but I think they're in the wrong and are just trying to bully people into paying a ridiculous amount of money for no reason!!

Any help GREATLY APPRECIATED!!! :A:smileyhea

MistyZ

Hi there.

Definitely complain to the landowner with evidence of money spent, without identifying the driver. I am pretty sure that this applies to most if not all retail sites 'served' by Parking Eye.

I would imagine (the regulars may know more) that BPA guidelines apply retrospectively. Time spent queuing to leave the car park would go in the grace period section. It would help to get photographs at the same time of day showing congestion and queuing if possible. Photos of signage may also be very helpful. The signage link in the POPLA section on the Newbies' thread serves most appeals well, though needs to be made relevant.

Have you checked the wording on the Notice to Keeper for compliance with POFA?

How long have you got to compile your POPLA appeal? Word on here is that there is actually 32 days after receiving notification of refusal of the first appeal in which to do so, contrary to the 28 days stipulated by the PPCs. It would help to know the date of the parking event and, possibly, the name of the car park.

The driver seems a little hazy about the leaving the car park bit, they need to rack their brains about this because double-dipping is very possible.

POPLA appeals are daunting, less so once you start gathering together relevant sections and working on them. You'll feel more confident once you see it taking shape. If you see good paragraphs from successful appeals, copy and paste and tweak them to make them specific to this event. Don't expect to get everything right straight off, you need a draft.

Coupon-mad

Complain first to the retail park, before you even start POPLA. i.e. NOW, this week! that means Googling the name of the retail park and contacting them with a complaint about this abject harassment, and also trying the Store Managers who will each have a 'User Manual' with an email/phone number for them to contact PE to cancel any PCN they choose to cancel for customers!

So ask! NOW. Not POPLA yet. That code keeps for 30+ days.

And yes, re this query, email ParkingEye the receipt as well:

The driver was a genuine shopper at the retail park and can include a bank statement (blanking out name of course) showing purchases from multiple stores at the retail site, so the info I found from the parkingCowboys site may apply?

info@parkingeye.co.uk

and ask them to cancel because you have now complained to the retailers and retail park Management and would rather avoid POPLA and have an apology and cancellation due to being genuine patrons at a very busy pre-Christmas time when it took well over 10 minutes just to find a parking space.

georgiafay

Hi, thanks for your reply!

I contacted the store manager who said they couldnt help, even though the driver spent £125 with them that day!
I then contacted their head office to see if they could help higher up the food chain but was only given an address that I could write to, email was not available but was informed that basically, it wouldnt get me anywhere and I needed to appeal to parking eye....already did that.

The car park is owned by british airways pension fund.... no prizes for guessing the car park in question but Im not confirming it, if you do :rotfl:
I cant see them entertaining my request for cancellation at all!

i got the rejection of my appeal from parking eye on the 28th of dec but only found it in my email a few days ago so time is running short for my popla appeal.

Ive made a start on a draft, mainly copied from a thread in newbies but changed it in parts for my case.
Ill post it up in here as soon as ive finished the first draft and id be extremely grateful if you could have a look at it and tell me if its ok or not?

thanks again! :A

MistyZ

Not sure about the receptiveness or otherwise of British Airways' Pension Fund to complaints. However if the car park serves the whole retail park as opposed to just being adjacent to it, then complain to the landowner / land management company responsible for the retail park. Any manager in the stores should be able to tell you who that is.

And if the address you've been given is for the specific store you spent all that money in, write to them as well, assuming you can't find an email address online. Best not to take much notice of what the store manager had to say, sounds like fobbing off customers is second nature to them.

Basically persevere with the landowner complaint! As well as getting prepared for POPLA.

Coupon-mad

MistyZ wrote: »

Not sure about the receptiveness or otherwise of British Airways' Pension Fund to complaints.

I am!

I cant see them entertaining my request for cancellation at all!

The Matalan Manager will cancel...ask her in person. You were browsing that day.

georgiafay

Hi coupon-mad and everyone,
I dont know when i'm next going to that retail park as it is quite far from where I live, so asking the manager in person may not be able to happen for some time, unfortunately :0(

Here is my draft appeal letter to Popla.
I think I may have said the same things twice, just in a different way, especially in point 2???

2. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the British Parking Association (BPA) Code of Practice

I've now gone word-blind from doing the draft till the small hours this morning and then all day today lol so if you could let me know where I may have gone wrong or if i need to add anything or take stuff away, that would be appreciated sooooo much!!!

I've used two different appeal sources and added what I think relates to my drivers case.








Dear POPLA

Various details: Code etc.


As the registered keeper I am submitting this appeal.
Parking Eye do not have the identity of the driver, as was stated in the Notice To Keeper (NTK).

Alleged overstay of 18 minutes.

I wish my appeal to be considered on the following grounds:

First and foremost, the driver was a genuine customer [using numerous shops in the retail park and spending approx. £150]
Had I known of the ‘genuine customer exemption’ within the Parking Eye contract with the landowner, I would have requested that the parking Charge Notice (PCN) be cancelled.



1. Grace periods

2. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the British Parking Association (BPA) Code of Practice

3. Keeper Liability Requirements and the Protection Of Freedom Act (POFA)

4. No Evidence of Period Parked – NTK does not meet POFA 2012 requirements

5. The signage was not compliant with the BPA Code of Practice

6. No valid contract formed between Parking Eye and the driver

7. ANPR





1. Grace periods


The BPA Code of Practice requires that operators allow drivers Grace periods to enter and leave a site, with a minimum time of 10 minutes to leave after the parking contract has ended and an additional Grace period should be allowed so the driver can find a space to park and read the relevant signs.

The NTK from Parking Eye states “time in car park : 2 hours 18 minutes”
It includes photographs which show arrival time (at a location which is unspecified) and departure time (also at a location which is unspecified.)

The cameras only operate at the perimeter and the contract cannot begin until the driver has had the opportunity to read and accept the conditions on offer.
To do this would not unreasonably take 5-10 minutes or more.
Add this to the required minimum recommended grace period of 10 minutes upon leaving a car park then 18 minutes is not in breach.

The signage states Parking limited to 2 hours.

“Maximum stay” does not cater for mandatory grace periods.
There can be no allowance for a grace period for finding a parking space if “parking” begins on entry to site i.e. a maximum stay, when the vehicle is still in motion, unless the driver is specifically notified of the time of entry to the site, and expiry time and the grace period is added to the maximum stay time.
Parking means a car is stationary in a parking bay.


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.

13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

As the operator has failed to allow for grace periods this appeal should be upheld.



2. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice


As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.
The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge.
It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules.
A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA Code of Practice) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 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.

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce the breach of contract.

I do not believe the operator has the authority of the landowner to issue parking charge notices or take court action in their own name to recover them.
This is a requirement of the British Parking Association Code Of Practise to which the operator must adhere.
I demand that the operator discloses a contemporaneous and unredacted copy of the contract between themselves and the landowner to show that they do.

Failure to do so must result in this appeal being upheld.

Failure to comply with statutory requirements prevents the operator from relying on the provisions of POFA to invoke keeper liability.

As the operator has no evidence as to the identity of the driver this appeal should be upheld.




3. Keeper Liability Requirements and the Protection of Freedom Act (POFA)


As keeper of the vehicle, I decline, as is my right, to provide the name of the driver of the vehicle at the time in question.
As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge.
In regards to the notices I have received, Parking Eye has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply.
The parking company can therefore in relation to this point only pursue the driver.

I would like to point out that Schedule 4 paragraph 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper.
If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with.
The Act clearly states that the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver).
In their parking charge notice letter at no point did they actually invite me as the registered keeper to pay the parking charge.
Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact I am under no legal obligation to do so).
The wording of the PCN makes it sound like I have little choice but to give up the driver and does not actually state the choice to pay it myself.

The Notice has no 'date sent by post' nor a 'date given' which immediately renders it non-compliant with Schedule 4.
It has what the operator describes as a 'date issued' which is neither of the two dates the Act requires.
It might just about scrape through if the 'date issued' was in fact synonymous with the date of posting but it is not.
The Notice did not arrive for several days after this purported 'date issued' because it is known that Parking Eye use iMail which only actually posts letters several days after the documents are prepared.
Therefore, the Notice does not comply with the statute as it omits either a 'date sent' or 'date given'.

The Act stipulates that the parking company must provide me with the period the car was parked.
I would strongly argue that the format of evidence provided (photographs from a number plate recognition camera showing the vehicle enter and leave the car park) is not actually valid or sufficient on its own as a form of evidence of the parking period.

8. 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; 


Failure to comply with statutory requirements prevents the operator from relying on the provisions of POFA to invoke Keeper Liability.

As the operator has no evidence as to the identity of the driver this appeal should be upheld.




4. No Evidence of Period Parked – Notice To Keeper (NTK) does not meet POFA 2012 requirements


Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.

Furthermore, POFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”.

Most notably, paragraph 9(2)(a) requires the NTK to:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

Parking Eye NTK simply claims “the vehicle entered and departed at (location) and does not state the actual period of parking to which the notice relates to.

The NTK separately states that the vehicle “entered [location] at [entry time] and departed at [exit time]”. At no stage does Parking Eye explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012.

Parking Eye NTK states “the signage states that, as a maximum stay car park, a parking charge is applicable if the vehicle remains within the car park for longer than the 2 hours 0 minutes max stay time.”

It is not in the gift of Parking Eye to substitute entry/exit or length of stay, in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, Parking Eye are not able to definitively state the period of parking.

I require Parking Eye to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NTK.




5. The signage was not compliant with the BPA Code of Practice


The signage has terms and conditions in small writing at the bottom that cannot be deemed readable before parking. (see below, Figure 1)

The Parking Eye NTK letter states “as a maximum stay car park, a parking charge is applicable if the vehicle remains within the car park for longer than the 2 hours 0 minutes max stay time.”
However, there is contradictory information on the signage which states “parking limited to 2 hours” (Again, please see, Figure 1) which is contradictory and there is uncertainty as to the terms of the stay – is it maximum stay from the point of entry, which is some unspecified point and at some unspecified time or is it, as the signage within the car park says, a maximum PARKING time?

Additionally, schedule 4 of the Protection of Freedom Act requires the operator to provide details of the parking period, therefore suggesting that applying contractual terms to drivers at the point or time of entry may be illegal.





6. No valid contract formed between Parking Eye and the driver


A driver would need to be informed of, and at the time, they had entered into a contract i.e. supposedly in this case at the time of entry to the site.

Failing to provide this precise time means they entered into a contract unwittingly and without their knowledge and agreement.

Code of practice
18.5 Driver must have chance to read Terms & Conditions before they enter into contract with you…

If a contract begins at the point of entry to the site, the driver has not been afforded the chance to read the terms and conditions before entering into a contract, nor can they read said terms at the time of parking or leaving their vehicle if the terms appear to be already applicable because they have already entered the site, which they must do in order to be able to read the terms.

18.3 Signs must be conspicuous and legible and they have chance to read them at time of parking or leaving vehicle.

The small print on the signage says “By parking, waiting or otherwise remaining within this private car park, you agree to comply with these terms and conditions (the “Parking Contract”)”. (Please see below, Figure 2.)
Parking means parking and not waiting or otherwise, whatever ‘otherwise’ might mean.
A driver cannot enter into a contract where uncertainty exists. ‘Otherwise’ is clearly an uncertainty.
Schedule 4 paragraph 9 of the Protection of Freedoms Act stipulates that a NTK can only be issued for a parking period, and does not include “waiting or otherwise”.

A charge for an alleged breach (denied) of contract cannot be served on a driver when the terms of the contract are uncertain and unclear, and when different parameters are applied to the contract. One appears to be when you drive past cameras before you park, and the other appears to be when you stop the car in a bay and move out of it afterwards.

Cameras show entry and exit times but not period parked as per POFA
(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;

I note that the NTK gives the time between entry and exit given by the cameras but not the period parked as required by POFA.

Parking Eye is applying a contract in different parameters, contravening POFA and the BPA Code of Practice. The terms are unclear to drivers and therefore this is an Unfair Contract.

20.5a When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.


For the Registered Keeper to be liable for the Parking Charge, there must be a contract between the driver and an agent authorised by the landowner. To create a contract under English law there must exist: offer, consideration and acceptance.

The Parking Charge cannot be construed as consideration. It is a contractual penalty for failing to comply with the terms. This is evident from the wording of the signage, and is confirmed by being outside the scope of VAT. If it were an additional payment for goods and services (VATSC44000), it would be liable to standard rate VAT. As a fine or penalty (VATSC57600) VAT does not apply.

As a contract has not been established by an exchange of consideration, the contractual penalty cannot be invoked.






7. ANPR


Camera equipment indicates entry and exit times but does not demonstrate the parking period.

There is no surrounding contextual information to locate the position of the vehicle in the photographs in relation to the car park.

The ANPR cameras are not identified upon entry to the car park. 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.

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

The small print on the signage does not clearly state what the ANPR cameras will be used for. This is not transparent.
The ANPR symbol appears to presume the driver recognises the symbol and will understand what it has been placed there for.
Signage therefore is inconsistent and breaches the BPA Code of Practice and therefore this appeal should be allowed.

The BPA Code Of Practise requires that the use of ANPR cameras and what the data produced by them will be used for, is conveyed to the motorist on the signage.
In this case the operator is claiming that the data is used as the starting time of a purported parking contract. Nowhere at the entrance or on any other sign does it state that the permissible parking stay begins when the driver’s VRN is recorded at an arbitrary point prior to parking, a point at which the motorist is completely unaware.

There was consequently no lawful contract to breach and even if there was it was not breached, the stay did not exceed that permitted.

There are no signs which tell a driver how the data captured by ANPR cameras will be used, which is a breach of the ICO registration of any AOS member and a breach of the BPA Code of Practice. As such, drivers are unaware that the timing is being started before they park and after they leave the parking space which is unfair under the Consumer Rights Act 2015 and a misleading business practice under the Consumer Protection from Unfair Trading Regulations 2008.





Figure 1. ill be adding the pic of the sign stating the above.

Figure 2. Ill be adding the pic of the larger sign stating the above.








Therefore, taking all the above into account, it is respectfully requested that this parking charge notice appeal be allowed.

Yours Faithfully,




any good?? :exclamati:question:_pale_ lol xx

Redx

georgiafay wrote: »

The main point for appeal is concerning grace periods, as the driver overstayed the allotted 2 hours "parking time", by 18 minutes.

This time is quoted from the ANPR cameras but does not show ACTUAL time parked or allow for the grace periods set by the BPA.

I know the BPA have now changed their wording for the grace periods (i believe it was changed on december 13th?) but this case occurred BEFORE the change.

The car park in question was extremely busy and it was on a weekend, with congested traffic coming in and out of the car park.

the last BPA CoP is dated January 2018 and I know of no wordings changes since that date, nor does it mention any on the BPA website since that date a year ago, so IMHO that CoP is the current one and predates this event , so was in force

PE measure TIME ON SITE , not PARKING TIME


the popla appeal seems ok to me on a skim read

KeithP

My first observation is - why is your signage section so short?

Did you read that part of post #3 of the NEWBIES thread where it says:

Signage (I deliberately go to town in this section, don't cut it down!):

georgiafay

Redx wrote: »

the popla appeal seems ok to me on a skim read

Thankyou VERY much for looking at my post!! :A

If you get any more time, please could you read it fully and let me know if I've said the same things twice please??
I think I may have but i'm not knowledgeable enough on the subject to tell!! lol

I have ONE SHOT at popla appeal stage so I need to know if the appeal above carries a high likeliness of success.....

:question: :undecided :wall: :exclamati :smileyhea

georgiafay

KeithP wrote: »

My first observation is - why is your signage section so short?

Did you read that part of post #3 of the NEWBIES thread where it says:

Hi, thank you for reading my post firstly! :T

Yes, the newbies FAQ sticky was my first port of call!!

I did also read that signage was a major part of an appeal, however, unfortunately for the driver and subsequently ME, the driver parked in....wait for it....


"THE BEAVIS CAR PARK"!!!!!! :rotfl:

I took this to mean that signage on that site has already been approved by the high court, so I didn't want to waste the assessors time by writing lots of 'stuff' about signage that has already been proven to be sound!....if you know what i mean?
:eek: :rotfl:

I hope you understand the shortness of my signage points now but actually, my case rests mainly on grace periods, i think, hence why I have stated that as my first point!