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Parking eye PCN after breaking down in car park. Appeal rejected
adrian_hassall
post Mon, 10 Jul 2017 - 12:12
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Hi

Not sure if anyone can help or give me some pointers!

My partner parked in a Parking Eye controlled car park back in May. The car park has a 2hr limit.
She did some shopping went back to the car approx 1hr and half / 1hr and 45 mins later to find the car wouldn't start. She attempted to get it to start and even nipped over to the petrol station to put a jerry can of petrol in.
She rang me to let me know what was going on but because I was at work I would be with her as soon as I could. I arrived approx 30 mins later and temporarily repaired the car in the car park, the car was removed from the car park 3 hours after arriving.

A week later we received a PCN from parking eye with anpr footage showing we had overstayed. I appealed on the grounds that the car was broken down and unable to be moved, and suggested that if they checked the CCTV footage this could be seen.
A response then come through via email requesting proof that she had been a customer on the retail park and had a legitimate reason for parking. I forwarded them a copy of a credit card statement showing the transaction on the retail park as well as the fuel she purchased.

Our appeal was rejected in writing due to not meeting the discretionary criteria set by the land owner. I've now lodged an appeal with POPLA.

POPLA have emailed me today asking for me to comment on the evidence provided by Parking Eye.
The evidence they have provided is the anpr footage showing the in and out times. The car parks layout with all signage showing the time frames etc.... as well as all the correspondence to and from.

Where do I stand now? I don't dispute that the car was in the car park an hour longer than it should have been and I don't dispute that there was sufficient signage, but I was unable to drive the car out of the car park in the designated time frame due to it breaking down. I have no proof of breakdown recovery as I temporarily repaired it myself, but I have provided the evidence of shopping they requested and also have a proof of purchase for a replacement part a couple of days later.

So do I have any chance of appealing this or am I likely to have to pay it?

Thanks in advance!
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post Mon, 10 Jul 2017 - 12:12
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Jlc
post Mon, 10 Jul 2017 - 13:09
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The phrase you needed was 'frustration of contract'. That means the contract could not be honoured because of circumstances outside of the driver's control, i.e. the breakdown.

PE are not in the business of accepting appeals. POPLA may well decide that the PCN was 'correctly issued' anyway.

There is no CCTV footage (well that PE have access to anyway).

If you do not win at POPLA then they may well issue a court claim, but it is potentially winnable with effort.


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RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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Lynnzer
post Mon, 10 Jul 2017 - 13:43
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POPLA won't have any reason to accept the appeal as you won't have mentioned the magic words "Frustration of Contract" and provided evidence of it. They may well have rejected it anyway as they only rule on whether the PCN was issued correctly. Mitigating circumstances aren't a reason for allowing the appeal.

Let's see what the POPLA appeal is, and also the response by PE.
There may be some scope to get a ruling for you.


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adrian_hassall
post Mon, 10 Jul 2017 - 14:26
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Ok thanks for the replies.

As it currently stands I have 7 days to reply to the evidence from Parking eye via Popla's online appeals portal.
Is there anything you can suggest I should send or write?

I assume I'm to late to use the magic words "Frustration of contract"
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Lynnzer
post Mon, 10 Jul 2017 - 14:55
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QUOTE (adrian_hassall @ Mon, 10 Jul 2017 - 15:26) *
Ok thanks for the replies.

As it currently stands I have 7 days to reply to the evidence from Parking eye via Popla's online appeals portal.
Is there anything you can suggest I should send or write?

I assume I'm to late to use the magic words "Frustration of contract"

No. You need to show us the POPLA appeal and ParkingEye's response.
Nothing less will do.


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adrian_hassall
post Mon, 10 Jul 2017 - 15:22
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So attached is the evidence from Parking Eye that has been sent to POPLA

I don't have any info from POPLA other than the email stating I need to view this eveidence and reply within 7 days. I logged my appeal with pretty much the same information I wrote on this topic.
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This post has been edited by adrian_hassall: Mon, 10 Jul 2017 - 15:24
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ostell
post Mon, 10 Jul 2017 - 16:25
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One item that caught my eye was that there was hidden itmes in the parking contract that were not brought to your attention, namely a condition that a minimum purchase stated by the stores to get a parking charge revoke.

Also where are the conditions shown to hold the keeper liable for the charge under POFA.
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adrian_hassall
post Mon, 10 Jul 2017 - 18:25
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I must be going blind! Lol Where have you seen the condition about a minimum purchase to have a charge revoked?

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cabbyman
post Mon, 10 Jul 2017 - 18:45
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Their letter of 21 June mentions a discretionary threshold to get the charge revoked. ie, a hidden condition of which you were not made aware at the time of the event.


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nosferatu1001
post Tue, 11 Jul 2017 - 10:03
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This confirms that the full contract was not brought to the drivers attention, and as such the CRA2015 bars the contract from having any validity. As such no PCN could be issued.

Mention AGAIN frustration of contract. Just give it a try.
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adrian_hassall
post Thu, 27 Jul 2017 - 10:27
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So an update.

I appealed to POPLA stating the Frustration of contract based on the car breakdown.

POPLA have replied today saying the appeal is unsuccessful.

Here is the POPLA response:

Assessor summary of operator case
The operator’s case is that the motorist exceeded the maximum parking time permitted at the site.

Assessor summary of your case
The appellant’s case is that the motorist returned to the vehicle within the parking time paid for; however, the vehicle broke down.

Assessor supporting rational for decision
In this case, it is not clear who the driver of the appellant’s vehicle is, so I must consider the Protection of Freedoms Act 2012 (PoFA 2012), as the operator issued the Parking Charge Notice (PCN) to the keeper of the vehicle. The operator has provided a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant. The terms and conditions of the site state: “2 hour max stay between 07:00 and 21:00. Failure to comply with the terms & conditions will result in a Parking Charge of: £70”. The operator has issued the PCN as the motorist exceeded the maximum parking time permitted at the site. The operator has provided images from the Automatic Number Plate Recognition system, which show that the appellant’s vehicle entered the car park at 12:06 and exited at 15:09 on the day in question, staying for a total of three hours and six minutes. The appellant’s case is that the motorist returned to the vehicle within the parking time paid for; however, the vehicle broke down. While I acknowledge the motorist’s circumstances and the evidence provided of this, when looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. Even if a motorist presents circumstances setting out reasons why they did not keep to the parking conditions, POPLA cannot allow an appeal if a contract was formed and the motorist did not keep to the parking conditions. As the motorist exceeded the maximum parking time permitted at the site, they have failed to adhere to the site’s terms and conditions. As such, I can only conclude that the PCN was issued correctly. Accordingly, I must refuse this appeal



So where do I stand now? Any help or guidance would be appreciated
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ostell
post Thu, 27 Jul 2017 - 10:39
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Sit tight and wait. I would think that PE would understand that frustration of contract would be a good defence in a court of law, as well as the CRA subject of hidden terms in a contract and therefore no valid contract. You may get a request for a nominal sum to make the matter go away.
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Gan
post Thu, 27 Jul 2017 - 11:07
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The assessors working for the new provider of the POPLA service are not legally trained

One rejection I received said that considering the legal issues raised was a matter for a court, not an assessment

A message I've recently received from POPLA says that the duty of the assessor is to determine if the parking notice was correctly issued

I haven't had a reply to a request to clarify if this differs from "Old POPLA" that determined if the payment was legally owned

A few months ago there appeared to be a division between assessors using the two different tests
It's increasingly clear that this confusion has been resolved and whether the payment is actually owed is no longer relevant

In my view, appealing to POPLA is in most cases no longer in the motorist's interest
It is like an IAS appeal - all it achieves is hand the parking company a decision to wave in court

This post has been edited by Gan: Thu, 27 Jul 2017 - 11:12
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Jlc
post Thu, 27 Jul 2017 - 11:39
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QUOTE (Jlc @ Mon, 10 Jul 2017 - 14:09) *
POPLA may well decide that the PCN was 'correctly issued' anyway.



--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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