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Successful POPLA appeal - punitive charges from PE, Details of decision and case information
trilbymullard
post Thu, 26 Sep 2013 - 08:25
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Hello there, like most of you, earlier in the year I got a speculative invoice from Parking Eye for overstaying in a retail park for 15 minutes. Using info of this and other sites I put an appeal together. The operator, the infamous Parking Eye, of course rejected it in the first instance. POPLA on the other hand allowed my appeal. This one is significant to me because my main grounds for appeal were that the charge was punitive in nature and didn't reflect the financial loss incurred by PE.

1. Here's the body of the POPLA decision:

Reasons for the Assessor’s Determination
'the appellant was issued with a parking charge for breach of the advertised terms and conditions of the parking site.

The operator submits that the appellant stayed longer than the maximum free time allowed and did not display a valid ticket afterwards.

The appellant submits that, amongst other things, the amount of the charge is disproportionate to the loss incurred by ParkingEye Ltd.

The burden of proof therefore shifts to the operator to prove that the amount of the parking charge is proportionate to the loss incurred. The operator has attempted to address this in the case summary by submitting that, amongst other things, the operator incurs the costs of erecting and maintaining signage throughout the site. However, these costs would have been incurred by the operator regardless of whether or not the appellant breached the terms and conditions of the site.
I am therefore not satisfied that the operator has discharged the burden of proof. On this ground alone, I allow the appeal.
'

Farah Ahmad
Assessor

2. This is a cut and paste of my poplar appeal - it came from this site and was adapted to fit my situation. It covers a number of angles but concentrates on the scale of the charge:

Please find my appeal below:
Popla ref xxxxxxxxx
Parking Eye Ltd.
PCN noxxxxxxxxxxxxxxxx
Reg xxxxxx
Location
On the xxxxxxxx, Parking Eye issued a parking charge notice because the above vehicle
was allegedly recorded on their automatic number plate recognition system as having stayed
in the location for 1 hour.

My Appeal.
1. The amount of the charge is disproportionate to the loss incurred by Parking Eye Ltd
and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to
be a penalty because Parking Eye Ltd have alleged a breach of terms and conditions
and yet have not quantified their alleged loss (which cannot include business running costs
nor the POPLA fee).

2. I do not believe that the Operator has specifically demonstrated a proprietary interest in the land,
because they have no legal possession which would give Parking Eye Ltd any right to
offer parking spaces, let alone allege a contract with third party customers of the lawful
owner/occupiers. In addition, Parking Eye Ltd's lack of title in this land means they
have no legal standing to allege trespass or loss, if that is the basis of their charge. I require
Parking Eye Ltd to demonstrate their legal ownership of the land to POPLA.
3. I contend that Parking Eye Ltd are only an agent working for the owner and their
signs do not help them to form a contract without any consideration capable of being offered.
VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue
with compelling statements of fact about this sort of business model.

4. I believe there is no contract with the landowner/occupier that entitles them to levy these
charges and therefore has no authority to issue parking charge notices (PCNs). This being the
case, the burden of proof shifts to Parking Eye Ltd to prove otherwise so I require that
Parking Eye Ltd produce a copy of their contract with the owner/occupier and that the
POPLA adjudicator scrutinises it.

5. Even if a basic contract is produced and mentions PCNs, the lack of ownership or
assignment of title or interest in the land reduces any contract to one that exists simply on an
agency basis between Parking Eye Ltd and the owner/occupier, containing nothing that
Parking Eye Ltd can lawfully use in their own name as a mere agent, that could impact
on a third party customer.

6. The BPA code of practice contains the following:
21 Automatic number plate recognition (ANPR)
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.
21.2 Quality checks: before you issue a parking charge notice you must carry
out a manual quality check of the ANPR images to reduce errors and
make sure that it is appropriate to take action. Full details of the items
you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good
working order. You need to make sure the data you are collecting is
accurate, securely held and cannot be tampered with. The processes that
you use to manage your ANPR system may be audited by our
compliance team or our agents.
21.4 It is also a condition of the Code that, if you receive and process vehicle
or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on
the use of CCTV and ANPR cameras, and on keeping and sharing
personal data such as vehicle registration marks.
21.5 If you want to make use of the Keeper Liability provisions in Schedule 4
of POFA 2012 and you have not issued and delivered a parking charge
notice to the driver in the car park where the parking event took place,
your Notice to Keeper must meet the strict requirements and timetable
set out in the Schedule (in particular paragraph 9).
I have had no evidence that Parking Eye have complied with these BPA Code requirements for
ANPR issued tickets so require them to evidence their compliance to POPLA.

I submit this purported charge is not legal and Parking Eye should cease harassing me
forthwith.

Should you require further information, please let me know.


3. I added more specific challenge around the scale of the charge following receipt of PE's case bundle. Here is the detail of that:

Following the receipt of an evidence pack from Parking Eye Ltd, please note below further specific comments regarding the charge issued in this instance.

The guidance offered by the Department of Transport set out in: Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges (September 2012 - Section 16 FAQs, point 1)

'Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.'

The evidence presented by Parking Eye Ltd doesn't illustrate in any way how the charge issued by them in this instance relates to an actual loss. The parking fee due for 15 minutes over the free 45 minutes parking in this instance is 90p. The current amount requested by parking eye is £85, which is 9,400% higher than the initial parking charge. Parking Eye Ltd have provided no detail of their administration costs for issuing this charge. Based on the available information the charge is disproportionate to the known loss of the Landowner and appears to be designed to penalise the driver.


This post has been edited by trilbymullard: Thu, 26 Sep 2013 - 08:29
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post Thu, 26 Sep 2013 - 08:25
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Umkomaas
post Thu, 26 Sep 2013 - 08:37
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Very we'll done OP, not only on your win, but even more impressively by doing this all yourself without any handholding from the forum.

Newbies - take note of what can be done by research and learning from the mine of information contained within these forum threads.

Great result smile.gif
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heathcliff
post Sat, 28 Sep 2013 - 11:29
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Personally, my message to newbies is to ask for help in putting your appeal together. Many people are willing. Mr Macho above sees it as "hand-holding" when in fact it is simply making sure your appeal succeeds instead of ballsing it up. Don't be afraid to ask!
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Umkomaas
post Sat, 28 Sep 2013 - 19:32
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QUOTE (heathcliff @ Sat, 28 Sep 2013 - 12:29) *
Personally, my message to newbies is to ask for help in putting your appeal together. Many people are willing. Mr Macho above sees it as "hand-holding" when in fact it is simply making sure your appeal succeeds instead of ballsing it up. Don't be afraid to ask!


Welcome heathcliff, I'm glad to see that you will now be working alongside the regulars advising and helping newbies through their troubles?

Looking forward to working with you.
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