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Arking pie guile, near saint ansted runway

edited 30 November 2013 at 3:53AM in Parking Tickets, Fines & Parking
72 replies 5.6K views
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  • edited 7 March 2014 at 8:44AM
    ampersandampersand Forumite
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    edited 7 March 2014 at 8:44AM
    Would someone be able to check this POPLA letter please? - with thenks to supertedgb, whose template has been well-used, with additions and changes.
    Thought schedule 2 1.c<Unfair Terms was worth including:
    (c)making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone'
    #
    'Dear Madam/Sir,
    re:xxx
    These are my Appeals for both ‘parking events’ cited above, POPLA codes having been finally received 77 and 71 days after they occurred‘, only then thanks to multiple intervention by BPA’s Mr x.

    As a lay person, I hope my reasons for a joint submission are acceptable: the Appeal grounds presented for both are identical.

    - the alleged offence is identical
    - similar wet, wintry, night conditions prevailed for both ‘parking events‘, one week apart.
    - identical photographic evidence is valid for both.

    The single difference is a petrol purchase on the night of the first ‘event’:
    [copied from Natwest online Bank Statement]
    'blahblah'

    Tomorrow is the final day for submission of these Appeals, in accordance with BPA’s x's email of 7 February 2014. POPLA codes eventually arrived with his help[at his 2nd attempt]. pe persistently ignored all requests for these by Royal Mail RD letters and emails [total exceeds 20, even to Company Directors and Company Secretaries, sent in desperation] from 2 December 2013 onwards. I have emailed ahead to advise this is en route to:
    [email protected] and [email protected]

    Logged ‘phone calls were a waste of time and money, which, as an old-age pensioner, I do not fritter. Research on these private parking company ‘parking events’ leads me to believe that I am not liable for any parking charge on a number of grounds.

    I ask that all are considered:

    1. Non-Compliant Signage, Unclear and Inadequate.

    2. Signage not compliant with Motorway Service Station Requirements

    3. Contract with the Landowner is not Compliant with the BPA code of Practice and No Legal Status to Offer Parking or Enforce Charges!

    4. No Contract with the Driver

    5. Unfair Terms

    6. ANPR Accuracy

    7. No Breach of Contract and No Genuine Pre-Estimate of Loss
    #
    1. NON-COMPLIANT SIGNAGE - INADEQUATE AND UNCLEAR

    Use of this heading does not imply that the Registered Keeper accepts that any compliant signage is visible at x.

    Kindly refer to photographs 1-31, which replicated the driver’s entry to the x motorway service area. As the photos show, no signage of any kind relating to pe is evident on the route or in the rest area used.

    Please note this duplicate journey was undertaken in winter daylight, mid-January, camera poised on the steering wheel. No opportunity has yet arisen to duplicate the journey by night, but the level of darkness between 21.14.30h and 00.59.14h on 22 and 29 November was absolute.

    In view of the 31 photographs, I draw attention to pe’s bold statement
    [letter date/ref]:
    ‘There are 40 signs, placed at the entrance, exit and throughout the site stating the terms and conditions.’
    May I request that POPLA put pe to proof of this and provide this proof to the Registered Keeper?

    The defendant contends that there is no visible, readable, parking-relevant signage detailing terms and conditions at all. Any signs and any core parking terms pe are relying upon were too ill-positioned or too small for any driver to see, read or understand. I request that the POPLA adjudicator asks for the Operator's evidence and signage map/photos for the pertinent dates.
    The Registered Keeper also requests proof of these 40 compliant signs and requests comparison of any such with the BPA Code of Practice requirements. Any pertinent signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of their full terms and any consequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

    May I also ask the adjudicator to put pe to proof of these words? [letter date/ref]:
    ‘We ensure signage is ample, clear visible and in line with BPA[British Parking Association]Code of Practice…’[sic]

    2. SIGNAGE NON-COMPLIANT WITH MOTORWAY SERVICE STATION REQUIREMENTS

    This was a Motorway Services Area.

    Operators of Motorway Services Areas (MSAs)and their agents must comply with the requirements of Government Policy. These provisions are reflected in the Traffic Signs Agreement into which they enter with the Highways Agency. The Highways Agency, on behalf of the Department for Transport (DfT), published a policy on the provision of roadside facilities on its network. That policy is 'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'.

    The policy states that “B19. At all types of site, where a charge is to be levied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.”!

    The compliance of!this!MSA!with the above policy is disputed and I therefore require pe to prove that such clearly displayed signage exists within the amenity!buildings at the car park in question, aside from the fact that such compliant signage exists within the car park itself.

    The current DfT circular headed ‘Motorway service areas and roadside facilities’, also repeats this Government specification and MSA obligation.
    ‘free toilets and hand washing facilities!with no obligation to make a purchase’

    The policy states “All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the!
    Highways Agency’s signs specialist for all non-prescribed signs.”

    I require pe to show proof to the!POPLA!adjudicator that the DFT, and/or Highways Agency, has granted special authorisation for pe's traffic signs at x!to be exempt from this policy requirement. It will not be acceptable for pe to claim that these particular signs are, in pe's own opinion, not 'traffic signs' when these signs have not been erected or positioned to direct pedestrians, but instead act to provide information to vehicle users who may never leave their vehicles.

    In both cases appealed here, the driver parked in darkness to rest. No ’information to vehicle users who may never leave their vehicles’ was visible. I contend that pe is reliant on compliant signage to assert a legal right to gain monies from alleged contravention of self-styled ‘parking events’.

    3. CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

    pe!do not own this car park and are assumed to be agents for the owner or legal occupier. Emails and RD letters to responsible persons asking for this information at x and pe brought not even the courtesy of an acknowledgment, let alone any reply. Not even CB Richard Ellis Ltd, who handle all lease agreements for Shell Retail Property Co., held any Landowner detail.

    In their two Notices and single rejection letter [for ‘parking event’ date xxx only] pe!does not provide any evidence that it is lawfully entitled to demand money from a driver or registered keeper, since it neither owns, nor has any interest in, nor Assignment of Title to, the land in question.

    It has been widely reported that some parking companies have provided “witness statements” instead of a relevant contract, even in redacted form. There is no proof that an alleged signatory on behalf of the landowner has ever seen the relevant contract, or indeed, is even employed by the landowner. Should such a witness statement be submitted, I require that it is accompanied by a letter, on that landowner’s headed notepaper and signed by a Director[or acceptable equivalent of that landowner] confirming that the signatory is, indeed, authorised to act on their behalf, has read all the relevant terms of the contract, and is qualified to attest to the full limit of authority of pe at x.

    I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or the legal standing to allege any Breach of Contract.

    I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS)v HMRC ( EWCA Civ 186 [2013])
    The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

    The ruling of the Court reads thus: "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services.’

    In other words, such monies are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply and to account to HMRC for the VAT element of the charge. The Registered Keeper asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

    No pe communication makes any reference to the recovery of monies for the Landlord.

    4. NO CONTRACT WITH THE DRIVER

    There was no contract between pe and the Registered Keeper or the driver. In fact, any such contract would be unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The requirements of forming a contract, such as a meeting of minds, agreement, certainty of terms, etc. can not be satisfied.

    5. 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. In particular, 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)c: making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;
    (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
    and 5(2]: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

    6. ANPR ACCURACY

    This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to 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 car.reg entering and exiting at specific times. It is vital that this Operator produces evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.!

    In addition to requiring that their maintenance records are produced, I require the Operator in this case to show any evidence rebutting this point. 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 the word "live" is incorrect. Without a synchronised time stamp, there is no evidence that the image is ever time accurately stamped. I strongly suggest that the ANPR "evidence" from this Operator in this car park is just as unreliable as the pe system and I put this Operator to strict proof to the contrary.


    7. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

    There was no parking charge levied, the car park is “free”. On both dates of these claimed losses, the car was the only one parked in the back rank. On both occasions, the back carpark was barely 5% full and there was no physical damage caused. No loss arose from either ’parking event’. Nor can!pe!lawfully include day-to-day operational running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever. No pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

    The charges levied are punitive and therefore void i.e. unenforceable. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to nearby town charges for parking. This is even truer for the additional charges which pe states accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery, unless it followed a Court Order.
    If a charge can be discounted by!40%!with early payment, it is unreasonable to begin with. xx website indicates '£10 all-day' car parking. The alleged overstays [91 minutes and 100 minutes,]represent approximately £1.43p combined.

    Nothing is demanded of xx guests who, by virtue of staying overnight are surely parked for more than 2 hours? At this point, we return to the Government’s Highways Agency specification and MSA obligation:
    ‘free toilets and hand washing facilities!with no obligation to make a purchase’

    Despite the fact that there was no demonstrable loss or damage, a breach of contract has been alleged for a free car park.

    The fact remains that this form of ‘Penalty Charge Notice’ is a specious document, designed to impersonate a parking ticket. This aligns with decisions reached in several County Court cases, such as Excel Parking Services v Hetherington-Jakeman (2008), also OB Services v Thurlow(review, February 2011), Parking Eye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .!
    The operator should not use the spurious wording “PARKING CHARGE NOTICE” to masquerade as an official parking fine, similar to those issued by Police and Council Wardens. pe’s demands for money are facsimile ‘invoices’ or ‘requests for monies‘. I contend that both fail to meet the standards set out in paragraph 19 of the BPA CoP and also fail to comply with basic contract law.

    I require pe to show proof to the!POPLA!adjudicator that the DFT/Highways Agency has granted special authorisation for pe's traffic signs in this particular!MSA!to be exempt from this policy requirement. It will not be acceptable for pe to claim that these particular signs are in pe's own opinion not 'traffic signs' when these signs have not been erected or positioned to direct pedestrians but instead act to provide information to vehicle users who may never leave their vehicles.

    In closing, I wish to table a specific pe instance of false record-keeping, aside from their failure to axknowledge or answer emails and Recorded Delivery letters[signatures captured and retained]. pe say POPLA codes were supplied on 8 January, on receipt of one letter 'dated 2nd January forwarded to PE by Capita plc'. A letter was sent to 'Capita Group Secretary Ltd' , but not until 7 January.
    Simultaneously, they would have me believe that a letter signed for on 9 January, was answered on the 8th January, all the while claiming to have received nothing from me before that date.
    y/f
    &
    #
    Critiques welcomed - many thanks to all.
    CAP[UK]for FREE EXPERT DEBT &BUDGET HELP:
    01274 760721, freephone0800 328 0006
    'People don't want much. They want: "Someone to love, somewhere to live, somewhere to work and something to hope for."
    Norman Kirk, NZLP- Prime Minister, 1972
    ***JE SUIS CHARLIE***
    'It is difficult to free fools from the chains they revere' François-Marie AROUET


  • edited 6 March 2014 at 11:00PM
    carandbikecarandbike Forumite
    65 Posts
    edited 6 March 2014 at 11:00PM
    ampersand wrote: »
    I require pe to show proof to the!POPLA!adjudicator that the DFT/Highways Agency has granted special authorisation for pe's traffic signs in this particular!MSA!to be exempt from this policy requirement. It will not be acceptable for pe to claim that these particular signs are in pe's own opinion not 'traffic signs' when these signs have not been erected or positioned to direct pedestrians but instead act to provide information to vehicle users who may never leave their vehicles.

    You've got this paragraph in section 7 as well as further up.
    A cut/paste oversight?

    Oh, and I'd say you are an appellant not a defendant.
  • Coupon-madCoupon-mad
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    And I would get rid of this old paragraph which isn't what you want (i.e. you would not accept a witness statement and a letter) you want the contract itself so this can be deleted:


    'It has been widely reported that some parking companies have provided “witness statements” instead of a relevant contract, even in redacted form. There is no proof that an alleged signatory on behalf of the landowner has ever seen the relevant contract, or indeed, is even employed by the landowner. Should such a witness statement be submitted, I require that it is accompanied by a letter, on that landowner’s headed notepaper and signed by a Director[or acceptable equivalent of that landowner] confirming that the signatory is, indeed, authorised to act on their behalf, has read all the relevant terms of the contract, and is qualified to attest to the full limit of authority of pe at x.'






    Submit that POPLA appeal tonight if you look here again, just in case the 28 days started ON 7th Feb which means today is day 28.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • edited 7 March 2014 at 10:31AM
    ampersandampersand Forumite
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    edited 7 March 2014 at 10:31AM
    Thankyou carandbike, coupon-mad and redx,

    All done - and I won't be wasting another RD fee on the envelope:-) COP will do fine.
    'Appellant' used throughout.
    I am grateful to you all.

    Steve Clarke's email says he has authorised 28 days after receipt of the Codes and I needed to attach all the pics, which show no PE signage at all, replicating the driver's customary path. This doesn't work with the online POPLA form.
    In fact, I never did receive the missing 2nd code by mail[for the 1st 'parking event'], just as I never did receive a 2nd Rejection either.
    I'll put the final version up shortly, just wanted to thank you all straight away. Was going in circles with it all in the end. I'm just annoyed that I haven't been able to afford going back there at night for another set of pics.
    CAP[UK]for FREE EXPERT DEBT &BUDGET HELP:
    01274 760721, freephone0800 328 0006
    'People don't want much. They want: "Someone to love, somewhere to live, somewhere to work and something to hope for."
    Norman Kirk, NZLP- Prime Minister, 1972
    ***JE SUIS CHARLIE***
    'It is difficult to free fools from the chains they revere' François-Marie AROUET


  • Coupon-madCoupon-mad
    105.4K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    ✭✭✭✭✭✭
    I think I would wallop in an online version today with POPLA as well - just in case POPLA chuck the code & whole appeal out (they won't know what Steve C has promised; I would not allow the code to time out by posting your appeal only).
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
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  • edited 7 March 2014 at 3:44PM
    ampersandampersand Forumite
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    edited 7 March 2014 at 3:44PM
    Thankyou all - this version is ready to go.
    c-m, I will try the email, but have had no success so far. It refuses the kernel pics, also sent ages ago to prankie as ammunition for this MSA.
    Have pm'd you.
    ###
    Dear Madam/Sir,

    These are my Appeals for both ‘parking events’ cited above, POPLA codes having been finally received 78 and 71 days respectively after each ’event’, only then thanks to multiple intervention by BPA’s Mr Steve Clarke.

    As a lay person, I hope my reasons for a joint submission are acceptable: the Appeal grounds presented for both are identical.

    - the alleged offence is identical
    - similar wet, wintry, night conditions prevailed for both ‘parking events‘, one week apart.
    - identical photographic evidence is valid for both.

    The single difference is a petrol purchase on the night of the first ‘event’:
    [copied from Natwest online Bank Statement]

    Tomorrow is the final day for submission of these Appeals, in accordance with BPA’s Mr Steve Clarke's email of 7 February 2014. POPLA codes eventually arrived with his help [at his 2nd attempt]. Parking Eye persistently ignored all requests for these by Royal Mail RD letters and emails [total far exceeds 20, even to Company Directors and Company Secretaries, sent in desperation] from 2 December 2013 onwards. I have emailed ahead to advise this is en route to:
    [email][email protected][email protected][/email], copied below:

    ‘Good afternoon Mr Reeve,
    Please be aware that POPLA Appeals for both 'parking events' will be posted to you 1st Class tomorrow, the last of 28 permitted days subsequent to the eventual receipt of POPLA codes, thanks only to the strong intervention of Mr Steve Clarke[2 attempts required, even by him!] of the B.P.A. on 7 February.
    I write this to highlight Mr Clarke's assurance that this limit would apply from the date of receipt, not from the verification code date, alleged to be 31 January, by pe.
    This is the salient sentence from that email: 'They will be structured in such a way that will allow you 28 days from receipt of them to make your appeal to POPLA.'
    Thankyou for your attention.
    Yours faithfully,
    &

    Logged ‘phone calls were a waste of time and money, which, as an old-age pensioner, I do not fritter. Research on these private parking company ‘parking events’ leads me to believe that I am not liable for any parking charge on a number of grounds.!

    I ask that all are considered:

    1. Non-Compliant Signage, Unclear and Inadequate.

    2. Signage not compliant with Motorway Service Station Requirements

    3. Contract with the Landowner is not Compliant with the BPA code of Practice and No Legal Status to Offer Parking or Enforce Charges

    4. No Contract with the Driver

    5. Unfair Terms

    6. ANPR Accuracy

    7. No Breach of Contract and No Genuine Pre-Estimate of Loss
    ########
    1. NON-COMPLIANT SIGNAGE - INADEQUATE AND UNCLEAR

    Use of this heading does not imply that the Appellant accepts that any compliant signage is visible at xxxx Motorway Services Area.!

    Kindly refer to photographs 1-31, which replicated the driver’s entry to the xxxx Motorway Services Area. As the photos show, no signage of any kind relating to Parking Eye is evident on the route or in the rest area used.!

    Please note this duplicate journey was undertaken in winter daylight, late on a mid-January afternoon, camera poised on the steering wheel. No opportunity has yet arisen to duplicate the journey by night, but the level of darkness between 21.14.30h and 00.59.14h on 22 and 29 November was absolute.

    In view of the 31 photographs, I draw attention to this bald ParkingEye assertion:
    [letter:’13th January 2014‘, p.2, para.1]:
    ‘There are 40 signs, placed at the entrance, exit and throughout the site stating the terms and conditions.’

    May I request that POPLA put Parking Eye to proof of this and provide this proof to the Appellant? Such proof must relate to the dates of the alleged ‘parking events’.

    The Appellant contends that there is no visible, readable, parking-relevant signage detailing terms and conditions at all. Any signs and any core parking terms Parking Eye relies upon were too ill-positioned or too small for any driver to see, read or understand. I request that the POPLA adjudicator asks for the operator's evidence and signage ma and /photos for the pertinent dates.

    The Appellant also requests any date-relevant proof of these 40 compliant signs be tested against the BPA Code of Practice requirements. Any pertinent signs that may be on this land (wording, position, clarity and frequency) clearly do not comply and fail to properly warn/inform the driver of their full terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

    May I ask the adjudicator to put Parking Eye to proof of these words? [letter 13/1/14. P1, para.4,ll.5-6]:
    ‘We ensure signage is ample, clear visible and in line with BPA [British Parking Association] Code of Practice…’[sic]

    2. SIGNAGE NON-COMPLIANT WITH MOTORWAY SERVICE STATION REQUIREMENTS

    xxxx is a Motorway Services Area.!

    Operators of Motorway Services Areas (MSAs)and their agents must comply with the requirements of Government Policy. These provisions are reflected in the Traffic Signs Agreement into which they enter with the Highways Agency. The Highways Agency, on behalf of the Department for Transport (DfT), published a policy on the provision of roadside facilities on its network. That policy is:
    'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'.

    The policy states that “B19. At all types of site, where a charge is to be levied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.”

    The compliance of this MSA with the above policy is disputed and I require pe to prove that such clearly displayed compliant signage exists within the amenity/buildings at the car park in question, aside from the fact that such compliant signage exists within the car park itself.

    The current DfT circular headed ‘Motorway service areas and roadside facilities’ repeats this Government specification and MSA obligation:
    ‘free toilets and hand washing facilities, with no obligation to make a purchase’

    The policy states “All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the
    Highways Agency’s signs specialist for all non-prescribed signs.”

    I require Parking Eye to show proof to the POPLA adjudicator that the DFT, and/or Highways Agency, has granted special authorisation for pe traffic signs at Welcome Break Birchanger Green to be exempt from this policy requirement. It will not be acceptable forpe to claim that these particular signs are - in its opinion - not 'traffic signs', when these signs have not been erected or positioned to direct pedestrians, but instead act to provide information to vehicle users who may never leave their vehicles.

    In both cases appealed here, the driver parked in darkness to rest. No ’information to vehicle users who may never leave their vehicles’ was visible. I contend that ParkingEye is reliant on compliant signage to assert a legal right to gain monies from any alleged contravention of self-styled ‘parking events’.

    3. CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

    pe does not own this car park and is assumed to be an agent for the owner or legal occupier. Phone calls, emails and RD letters to responsible persons [CEO’s, Company Directors, Company Secretary, Heads of Department, Appeals Department] asking for this information at Welcome Break and pe brought one Welcome Break email acknowledgment, but no substantive reply. Not even CB Richard Ellis Ltd, then responsible for lease agreements for Shell Retail Property Co., held the Landowner detail.

    In both ‘invoices’ and the single rejection letter [for ‘parking event’ date 22/11/13 only], pe does not provide any evidence that it is lawfully entitled to demand money from the Appellant, since it neither owns, nor has any interest in, nor Assignment of Title to, the land in question.

    I do not believe that this operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or the legal standing to allege any Breach of Contract.!

    I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS)v HMRC ( EWCA Civ 186 [2013])! The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated:
    ‘If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be.’!

    The ruling of the Court reads:
    ‘I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services.’

    This makes it clear that the monies VCS collected from motorists by enforcement of parking charges were not a consideration, moving from the landowner in return for the supply of parking services.

    In other words, such monies are not, as the operator asserts, a contractual term. If they were a contractual term, the operator would have to provide a VAT invoice, to provide a means of payment at the point of supply and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the operator charges are in fact damages, or penalties, for which the operator must demonstrate its actual, or pre-estimated, losses, as set out above.

    No pe communication makes any reference to the recovery of monies for the Landlord. In fact, the ‘invoice’ specifically states ‘the parking charge is now payable to pe Ltd[ as the creditor].’

    4. NO CONTRACT WITH THE DRIVER

    There was no contract between ParkingEye and the Registered Keeper or the driver. In fact, any such contract would be unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The requirements of forming a contract, such as a meeting of minds, agreement, certainty of terms, etc. cannot be satisfied.

    5. 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. In particular, 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)c: making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;

    (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.’

    and 5(2]:
    ‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

    6. ANPR ACCURACY

    This operator is obliged to ensure its ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the operator to 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[reg.no.] entering and exiting at specific times, aside from the occasion showing the purchase of petrol on 22/11/13. It is vital that this operator produces evidence in response to these points and explains to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the operator in e v Fox-Jones on 8 Nov 2013. That case was dismissed when the Judge said the evidence from the operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

    In addition to requiring that its maintenance records are produced, I require the operator in this case to show any evidence rebutting this point. 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 the word ‘live’ is incorrect. Without a synchronised time stamp, there is no evidence that the image is ever accurately time-stamped. I strongly suggest that the ANPR ‘evidence’ produced by the same operator for this car park is as unreliable as that dismissed in e v Fox-Jones on 8 Nov 2013. I put this operator to strict proof to the contrary.

    7. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

    There was no parking charge levied, the car park is ‘free‘. On both dates of these claimed losses, the back car park was barely 5% full and there was no physical damage caused. This is precisely why this parking space was chosen, to permit rest in darkness and quiet. No loss arose from either ’parking event’. Nor can pe lawfully include day-to-day operational running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever. No pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

    The charges levied are punitive and therefore void, hence unenforceable. xxxx website indicates '£10 all-day' car parking. 2 free hours plus 24hrs=£10.
    This equals 38.5p per hour. 2hrs11mins[131mins]=£0.84p when rounded up. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it remotely compare with nearby charges for parking in busy Bishop‘s Stortford, where 42 secure parking locations are offered from £3 per day. This is even truer for the additional charges which e states accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery, unless this followed a Court Order.!

    If a charge can be discounted by 40% with early payment, it is unreasonable to begin with.

    Nothing is demanded of xxxx guests who, by virtue of staying overnight, are surely parked for more than 2 hours. At this point, we return to the Government’s Highways Agency specification and MSA obligation of:
    ‘free toilets and hand washing facilities, with no obligation to make a purchase’.

    Despite the fact that there was no demonstrable loss or damage, a Breach of Contract has been alleged for using a free car park.
    The e ‘Penalty Charge Notice’ is designed to impersonate a parking ticket. This is evident in decisions reached in several County Court cases, such as Excel Parking Services v Hetherington-Jakeman (2008), also OB Services v Thurlow(review, February 2011), ParkingEye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .

    The operator should not use the spurious wording PARKING CHARGE NOTICE to masquerade as an official parking fine, similar to those issued by Police and Council Wardens. pe demands for money are facsimile ‘invoices’ or ‘requests for monies‘.

    The Appellant contends that both speculative ’invoices’ fail to meet the standards set out in paragraph 19 of the BPA CoP and also fail to comply with basic contract law.

    I require pe to prove to the POPLA adjudicator that the DFT/Highways Agency has granted special authorisation for pe traffic signs in this particular MSA to be exempt from this policy requirement. It will not be acceptable for pe to claim that these particular signs are, in pe opinion, not 'traffic signs' when these signs have not been erected or positioned to direct pedestrians, but instead act to provide information to vehicle users who may never leave their vehicles.
    #
    CAP[UK]for FREE EXPERT DEBT &BUDGET HELP:
    01274 760721, freephone0800 328 0006
    'People don't want much. They want: "Someone to love, somewhere to live, somewhere to work and something to hope for."
    Norman Kirk, NZLP- Prime Minister, 1972
    ***JE SUIS CHARLIE***
    'It is difficult to free fools from the chains they revere' François-Marie AROUET


  • Coupon-madCoupon-mad
    105.4K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    ✭✭✭✭✭✭
    You could send it without pics/attachments online, today to POPLA, and state that the pictures and a hard copy of the full appeal are in the post to be matched up as evidence for your case. You could also add a note at the top to draw POPLA's attention to the fact that the Code is in date because the Ops Manager of the BPA has allowed you to use it for 28 days from receipt.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • ampersandampersand Forumite
    9.3K Posts
    Part of the Furniture 1,000 Posts Photogenic Name Dropper
    ✭✭✭✭
    Thanks c-m, managed that mid-afternoon.
    2nd code was refused 11 times, but suddenly went through and both have gone through with suitable rider, SC's email, and Supplementary sheet, ykwim.
    COP from village PO for hard copy+pics.
    POPLA show me a version which is appalling - no lay-out. Every single letter just runs onto the next, no spacing or punctuation. Just as well a hard copy has gone, confirmed to POPLA.
    CAP[UK]for FREE EXPERT DEBT &BUDGET HELP:
    01274 760721, freephone0800 328 0006
    'People don't want much. They want: "Someone to love, somewhere to live, somewhere to work and something to hope for."
    Norman Kirk, NZLP- Prime Minister, 1972
    ***JE SUIS CHARLIE***
    'It is difficult to free fools from the chains they revere' François-Marie AROUET


  • bod1467bod1467
    15.2K Posts
    ✭✭✭✭✭
    With web forms it's best to copy your text (e.g. from Word) into Notepad or similar. This will show you formatting issues and let you fix them. Then you copy from Notepad into the web page. :)

    It's the same as when we see people posting their POPLA appeals in threads here for checking - the formatting is screwed if they've copied straight from Word.
  • ampersandampersand Forumite
    9.3K Posts
    Part of the Furniture 1,000 Posts Photogenic Name Dropper
    ✭✭✭✭
    Reporting 2 more successful POPLA Appeals, just found in email.

    15 April 2014
    Reference xxx
    always quote in any communication with POPLA
    & (Appellant)
    -v-
    ParkingEye Ltd (Operator)
    The Operator issued parking charge notice number xxx arising out of a presence on private land, of a vehicle with registration mark xxx
    The Appellant appealed against liability for the parking charge.
    The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.
    The Assessor’s reasons are as set out.
    The Operator should now cancel the parking charge notice forthwith.


    2 15 April 2014
    Reasons for the Assessor’s Determination

    It is the Appellant’s case that the parking charge notice was issued incorrectly.
    The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.
    Accordingly I have no option but to allow the appeal.
    Christopher Adamson
    Assessor
    #
    I am happy to make my 31 Birchanger Green Welcome Break photos available.
    I intend pursuing pe for my costs.
    CAP[UK]for FREE EXPERT DEBT &BUDGET HELP:
    01274 760721, freephone0800 328 0006
    'People don't want much. They want: "Someone to love, somewhere to live, somewhere to work and something to hope for."
    Norman Kirk, NZLP- Prime Minister, 1972
    ***JE SUIS CHARLIE***
    'It is difficult to free fools from the chains they revere' François-Marie AROUET


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