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  • FIRST POST
    parker10
    POPLA letter draft
    • #1
    • 22nd Oct 13, 7:28 PM
    POPLA letter draft 22nd Oct 13 at 7:28 PM
    Hi,

    I received a notice to keeper from parking eye for entering and leaving a beach car park. They sent photos of my vehicle entering and leaving the car park. I soft appealed it and have now got my POPLA code.

    Iv scoured the forums and looked at other letters drafted and their reasons for appeal. I'v come up with my first draft. Id really appreciate any advice on it, especially if any of it needs to be removed, changed or if there is anything you think I should add.

    cheers

    POPLA REF XXXXXXXXXXXXXXXX

    CAR REG XXXXXXXXXXXXXXXX

    As the registered keeper of the car mentioned above I would like to appeal the parking charge notice issued to me by Parking Eye for a number of reasons.

    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 paragraphs 8 and 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 clearly said that “the driver of the motor vehicle is required to pay the parking charge” and wrongly went on to imply that I should 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 actually 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. I would also like to point out that 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. Parking Eye should also have issued a Notice to Driver stuck on the vehicle to back up their claims, which in this case they failed to do. In summary the total sum of their evidence does not show that the vehicle was actually parked at all, making it completely unsuitable for proving a supposed contract of this nature has even been breached (even if it had been entered into). I would also like to point out that they have also failed to show me how this method complies with the BPAs code of practice. According to the Protection of Freedoms Act failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver. Seeing as this is the case I suggest that the parking charge is actually void.

    In addition although I was not the driver I would like to point out that the signs in this beach car park in question fail to properly inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Parking Eye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for beach users to unwittingly fall outside the terms of contract. It is not appropriate for a beach car park to have such a limited amount of signs and rely on drivers to look carefully at the terms displayed on ticket machines. The nature of the car park is such that some drivers will just pull up just to watch the waves or check the beach conditions (as they have been doing for decades) and are therefore not clear on what the terms and conditions actually are. It is surely the responsibility of Parking Eye to make the terms of their contract far clearer so that drivers have no doubt of any supposed contract they may be entering into. I would like to point out that The BPA Operational Requirements Section 18.2 states:

    'Entrance signs must follow some minimum general principles and be in standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance.''

    The types of signs they are using are simply not clear enough and do not do enough to highlight the terms and conditions of using the car park. I also believe that the signs do not make it clear enough that number plate recognition is used on this site suggesting further that they have breached the BPAs code. Judging by the number of complaints easily located online it appears far too many people are entering the car park unaware of the terms they are supposedly entering into.

    newquayvoice /news/5/article/3428/ (had to remove full URL or I couldnt post)

    Parking Eye are on record in 2013 having said in a letter to a third party which is located in the public domain, that all their charges are based on 'breach of contract'. Also actual wording of the parking notice clearly indicates that this is a contractual charge. I quote:

    "By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable."

    This suggests a clear attempt to enforce this charge under paragraph B 19.5 of the BPA Code of Practice in which it states that this must be a genuine pre-estimate of the loss they have incurred. They are required to back up this argument by providing POPLA with a detailed financial appraisal which outlines a genuine and justified reflection of the amount of loss or damages in this particular car park for the time in question. The 100 pounds they are imposing is surely punitive and therefore void. It is grossly disproportionate to any alleged breach of contract. Furthermore the driver was present in the car the entire period in question and would have moved the car at any point had they been blocking anyone from finding a parking space. This means that the landowner incurred no actual losses. Either way at most the driver can be liable for little more than the cost of a parking ticket for the period in question. I cannot see how Parking Eye has arrived at the sum of 100 pounds and they have made no effort to provide me with a breakdown of their supposed loses. I strongly believe that the charge of 100 pounds is punitive and it falls on the parking company to disprove this.

    Furthermore although there is no contract between Parking Eye and myself or the driver if there were then the Unfair Terms Consumer Contracts Regulations 1999 clearly states:

    5. (1) 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.

    (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.”

    The Unfair Terms Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one Parking Eye are suggesting. A company such as Parking Eye should be issued under contract law. The above points prove that it is unfair to assume that either the driver or the registered keeper can be expected to enter into such a contract with such little input on their behalf. In addition to suggest a breach of contract has occurred, Parking Eye needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

    Finally I believe that Parking Eye has no real right to lawfully demand money from either the driver or myself. Parking Eye surely has no proprietary interest in the land and therefore no authority. I would request that POPLA look into the parking company’s contract with the landowner to check if it lawfully enables them to pursue parking charges in courts and whether it is compliant with the BPAs code of conduct. Furthermore according to the Protection of Freedom Acts they are suppose to be able to provide a contract from the landowner as evidence of having clear authorization to issue tickets on their land. I have not been provided with any means of this contract as evidence.

    I respectfully request that this parking charge notice appeal be allowed.
Page 1
    • Guys Dad
    • By Guys Dad 23rd Oct 13, 12:00 AM
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    Guys Dad
    • #2
    • 23rd Oct 13, 12:00 AM
    • #2
    • 23rd Oct 13, 12:00 AM
    Lots of armchair lawyer stuff but will probably fail as it stands.

    Just add in the usual wording on genuine pre-estimate of loss to the winger about the extortionate charge and you should be OK as long as you put GPEOL paragraph in bold so it doesn't drown in all the rest.
    I believe that a fair bit of your wording is not correct - at least in the context of parking.
    Last edited by Guys Dad; 23-10-2013 at 12:02 AM.
  • parker10
    • #3
    • 23rd Oct 13, 8:04 AM
    • #3
    • 23rd Oct 13, 8:04 AM
    OK thanks, il write up a second version with the following:

    il move part about extortionate charge to the top and add a bit about pre-estimate lost so they see that first as thats possibly my most likley point to win on.

    il also try to work on the wording, although iv tried to read up on it and understand it all maybe i'm trying a bit to hard to make it sound like I know my stuff and im coming across as confused. Maybe a simpler approach would be better.

    Not quite sure what you mean about the GPEOL paragraph?

    also am I best to quote the Acts and BPA code of practice? or should I drop that.

    thanks again for your input, really apprecaited
    • Guys Dad
    • By Guys Dad 23rd Oct 13, 8:42 AM
    • 10,891 Posts
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    Guys Dad
    • #4
    • 23rd Oct 13, 8:42 AM
    • #4
    • 23rd Oct 13, 8:42 AM
    GPEOL is genuine pre estimate of loss.

    All these appeals are a meter of style and content. If you have the content, then the style shouldn't matter too much.

    It has been shown on here that a busy adjudicator can miss the killer point amongst all the rest of the padding, for want of a better word.

    For me, I like the style of the draft on the other thread on this page by Hockey Ben, but at least yours is original.

    Just make sure that your GPEOL point stands out and is as tight as you can make it. And good luck.
    • Coupon-mad
    • By Coupon-mad 23rd Oct 13, 2:21 PM
    • 77,689 Posts
    • 91,152 Thanks
    Coupon-mad
    • #5
    • 23rd Oct 13, 2:21 PM
    • #5
    • 23rd Oct 13, 2:21 PM
    GPEOL is genuine pre estimate of loss.
    But only on this forum of course - the acronym is our shorthand, so use the whole phrase for POPLA.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • parker10
    • #6
    • 23rd Oct 13, 5:53 PM
    • #6
    • 23rd Oct 13, 5:53 PM
    Thanks for your input guys, it is much appreciated, I was going for my own style a bit as I didn't want it to look to much like other ones. However i'v taken your advice on board looked at the style of the other one you suggested and changed my layout and order (im hoping the wording is a fair bit clearer now). Im also hoping now that it makes the bit about GPEOL stand out a lot more so it is not missed. Do you think there is anything else I could add in there? I noticed others quote previous POPLA cases, should I be doing the same or is that overboard? im already a little worried its too long and as you have suggested the adjudicator may miss the important facts.

    Heres my second draft

    POPLA REF XXXXXXXXXXXXXXXX

    CAR REG XXXXXXXXXXXXXXXX

    As the registered keeper of the car mentioned above I would like to appeal and have cancelled the parking charge notice issued by ParkingEye Ltd for a number of reasons outlined below:

    1. ParkingEye Ltd has no contractual authority

    In the notices they have sent me ParkingEye Ltd have not shown any evidence that they have any proprietary interest in the car park/land in question. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I would request that POPLA request a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that ParkingEye Ltd are entitled to pursue matters such as these through the issue of Penalty Charge Notices and the courts. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

    2. The charge is punitive and not a genuine pre-estimate of loss


    Judging by the wording of the penalty charge notice this is clearly an attempt to enforce this charge under paragraph B 19.5 of the BPA Code of Practice in which it states that this must be a genuine pre-estimate of the loss that may have incurred. ParkingEye Ltd claim that my car was in the car park for xxxx minutes, whilst the tariff to park for the day is just over £7. They are asking for a charge of £100 for this penalty. This alone is far more than the cost to the landowner could have loss for the time my car was said to have parked there. The charge is clearly punitive and disproportionate to any alleged breach of contract. Furthermore the driver was with the vehicle the entire length of time spent in the car park, even though the car park was not even close to full they would have moved at any point had they been stopping someone from parking. This means that the landowner incurred no actual cost in either income generated by a parking space or custom to local businesses.

    Furthermore as the operator is clearly seeking to impose a penalty it is their sole responsibility to provide a full breakdown as proof of the pre-estimated loss of £100. As of this point they have made no effort to provide me with a breakdown of the costs they allegedly incurred. To justify the charge of £100, I require ParkingEye Ltd to back up their decision by providing POPLA with a full and detailed financial breakdown of the pre-estimated costs they have suffered as a result of the charge in question. I would like to add that normal costs of running their business (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as ParkingEye Ltd would need to pay these irrespective of this alleged charge. Parking enforcement costs cannot possibly represent any loss resulting from an alleged breach of contract, as these costs would need to be paid whether the breach had happened or not.

    In summary not only is the £100 charge completely disproportionate meaning that it is punitive and is breaking the Unfair Contract Terms Act 1997, but there can be no loss shown at all as no pre-estimate charge has been put together making the charge unenforceable against me or the driver.

    3. Keeper Liability Requirements and the Protection of Freedom Act

    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 paragraphs 8 and 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 actually 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. I would also like to point out that 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. Parking Eye should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do

    4. Use of ANPR cameras

    ParkingEye Ltd have failed to show me any evidence that cameras used at this site comply with the BPAs code of conduct (part 21 (ANPR)). I would ask that POPLA consider the whole of this part of the code to decide if ParkingEye Ltd has complied in its evidence. This was the total sum of their evidence but it does not actually show that the vehicle was actually parked at all; making it completely unsuitable for proving a supposed contract of this nature has even been breached. They should be required to issue a physical Notice to Driver on the windscreen as well to prove further that their contract had been breached.

    5. No Contract was entered into between the Parking Eye and the Driver or Registered keeper

    Although I was not the driver I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Parking Eye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for beach users to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. The nature of the car park is such that some drivers will just pull up just to watch the waves or check the beach conditions (as they have been doing for decades) and are therefore not focused on seeking out the somewhat unfair terms and condition. It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I would request that POPLA ask for evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site. Judging by the number of complaints easily located online it appears far too many people are entering the car park unaware of the terms they are supposedly entering into.

    .newquayvoice.co.uk/news/5/article/3428/

    Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

    I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves
    and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things like, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

    6. Unfair terms of contract

    Although there is no contract between Parking Eye and the driver (or myself), if there were then I would ask POPLA to consider this charge to be unfair and non binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply. I have highlighted the following specifically as I believe they apply directly to this case:

    2. (1) (e) Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

    5. (1) 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.

    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.

    The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one ParkingEye Ltd are suggesting. A company such as Parking Eye needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

    7. Without a contract

    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 Ltd could seek would be damages. As there was no damage to car park there was no loss to them at all and therefore should be no charge.

    I respectfully request that this parking charge notice appeal be allowed and await your decision.
    • Guys Dad
    • By Guys Dad 23rd Oct 13, 7:47 PM
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    Guys Dad
    • #7
    • 23rd Oct 13, 7:47 PM
    • #7
    • 23rd Oct 13, 7:47 PM
    Very clear and seems to cover it.
    • Coupon-mad
    • By Coupon-mad 23rd Oct 13, 10:42 PM
    • 77,689 Posts
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    Coupon-mad
    • #8
    • 23rd Oct 13, 10:42 PM
    • #8
    • 23rd Oct 13, 10:42 PM
    Seconded - send it off!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • parker10
    • #9
    • 24th Oct 13, 7:33 AM
    • #9
    • 24th Oct 13, 7:33 AM
    Thanks guys, I have really valued your input

    Il send it off straight away and be sure to post up the POPLA verdict once I recieve it

    time to get back to other things
  • parker10
    Appeal Allowed!! the pre-estimate loss seems to have done the trick...

    "The operator are costs that would normally be incurred in their business, the amount sought is not a genuine pre estimate of loss and cannot be commercially justifiable.

    Accordingly, this appeal must be allowed.

    Shehla Pirwany "

    Thanks a lot guys, feels good to win for the principle of it

    • Coupon-mad
    • By Coupon-mad 7th Dec 13, 8:24 PM
    • 77,689 Posts
    • 91,152 Thanks
    Coupon-mad
    The standard points win the day again! Well done - easy when you know how!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • parker10
    iv got to admit. I was a little put off about going through the effort at first, as all the example letters looked complicated and wordy, I was tempted to just pay it, however I'm pretty stubborn and hate paying parking fines.

    Once you have done your research it makes sense though and now I'v been through the process it all seems pretty easy , would defintley recommend fighting these private company parking tickets, the satisfaction was well worth the efforts

    thanks again for your help
    • Stroma
    • By Stroma 8th Dec 13, 6:47 PM
    • 7,917 Posts
    • 8,408 Thanks
    Stroma
    It does seem daunting at times, but the hard work has been done for you, all we do is point you at certain threads and links to information. We know what wins and why, all we ask is that you do before you appeal so you understand this scam.

    Our payment is only to pass the message on, we get huge satisfaction in helping people, and have threads of successful appeals and complaints stickied at the top of the forum. So please mention it to people
    When posting a parking issue on MSE do not reveal any information that may enable PPCs to identify you. They DO monitor the forum.
    We don't need the following to help you.
    Name, Address, PCN Number, Exact Date Of Incident, Date On Invoice, Reg Number, Vehicle Picture, The Time You Entered & Left Car Park, Or The Amount of Time You Overstayed.
    Anti Enforcement Hobbyist Member
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