POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

[redleg]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

Thanks very much @redleg my thoughts exactly and the crux of my argument with them. There is no justification for their imposition of this ridiculous penalty and because they have gone to such lengths to try and suggest there is, I have hammered them on almost every single point in their evidence pack. (I have however made mystery1's advice the main focus of my response - i needed to, to stop it becoming a rant, but it just gets you so you feel irate, you feel the need to "have your say"). I was telling my gf yest that as it's not happened to me before and it's so time consuming and stressful i can see how so many people cave in and just pay and I'm really determined, totally convinced I'm right, as well as having a background in law. A thoroughly despicable way of making money!

Response is in i shall let you know the outcome. Thanks for your support.

You will feel different when the appeal comes out in your favor.
Then you will wonder what all the stress and worry was about

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

Hi again all

My appeal on the above matter has been delayed by popla pending the outcome of the Beavis case which having read the judgement appears to have gone badly for the public and well for the bar stewards running the ppc's!

I've been invited to make further submissions based on the decision (as have excel) I would just like to know. 1) what the decision might mean in the context of my circumstances? 2) are there any additional submissions i should be making in your opinions?

As always absolutely grateful for any and all assistance received from here.

[mystery1]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

I'm in the middle of a 3 day work spell and have 1 court and 1 popla that needs done tonight ! Ask again on Wed/Thur if it's not too late.

M1

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

I'm in the middle of a 3 day work spell and have 1 court and 1 popla that needs done tonight ! Ask again on Wed/Thur if it's not too late.

M1

No problems M1, its not too late and I will do. Thanks for your help and good luck with your evening's work!

[mystery1]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

OK, we need to attack the PCN and whether or not it is a compliant notice to keeper. Can you scan it up ?

We also need to introduce parking eye v Cargius which distinguishes Beavis.

http://nebula.wsimg.com/de2566ded6f0...&alloworigin=1

It could also be argued that the Beavis appeal also agrees with Cargius.

Once i've seen the PCN we'll send in more stuff to popla.

M1

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

OK, we need to attack the PCN and whether or not it is a compliant notice to keeper. Can you scan it up ?

We also need to introduce parking eye v Cargius which distinguishes Beavis.

http://nebula.wsimg.com/de2566ded6f0...&alloworigin=1

It could also be argued that the Beavis appeal also agrees with Cargius.

Once i've seen the PCN we'll send in more stuff to popla.

M1

Here you go Mystery1 sorry it's taken a little while. You'll see i was sent 2 separately dated PCNs.. not sure if this makes any difference.

Let me know if there are any issues with this upload and again Thanks for your time and assistance.

[mystery1]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

I wish to make further submissions in support of my appeal sent previously.

The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required.

Right to claim unpaid parking charges from keeper of vehicle


4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met ....

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—


(b)has given a notice to keeper in accordance with paragraph 9.


9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.






The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not the person who was driving the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held thatthe specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid.


Sections E & F has not been complied with at all. Other sections are not totally complied with either.



The operatormay suggest that the charge is commercially Justified in line with ParkingEye v Beavis however as explained in Beavis this was for a contract where the operator paid £1000 per week which is not the case here. Parking Eye v Cargius is more akin to this scenario and it was ruled Beavis does not apply in a paid car park.



Yours etc

M1

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

I wish to make further submissions in support of my appeal sent previously.

The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required.

Right to claim unpaid parking charges from keeper of vehicle


4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met ....

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—


(b)has given a notice to keeper in accordance with paragraph 9.


9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.






The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not the person who was driving the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held thatthe specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid.


Sections E & F has not been complied with at all. Other sections are not totally complied with either.



The operatormay suggest that the charge is commercially Justified in line with ParkingEye v Beavis however as explained in Beavis this was for a contract where the operator paid £1000 per week which is not the case here. Parking Eye v Cargius is more akin to this scenario and it was ruled Beavis does not apply in a paid car park.



Yours etc

M1

Ok [MENTION=5354]mystery1[/MENTION] I have submitted the additional submissions and await any responses from Excel. I will let you know if there are any.

Once again my enormous thanks for your assistance.

Dynamicman

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

@mystery1

Following my recent submissions, I have received the following from Excel PS, I wonder if you could look at these when you have time and give me any comments.

As always very grateful for your assistance.

Revised Case Summary:

Appellant/Keeper:		VRM:	x
Contravention Date/Time:	30/11/2014 at 20:34
PCN Issue Date:	09/12/2014
Car Park Site:	Peel Centre (Stockport)
Contravention:	[94] - Parked Without Displaying a Valid Ticket/Permit
Reasons For Issue:	Breach of Contract/Trespass. The appellant (x) parked his vehicle in the Peel Centre Car Park without purchasing a valid Pay & Display (P&D) ticket. The vehicle was first observed entering the car park at 19:39 and exiting at 20:34, a total of 55 minutes in a controlled P&D car park. The appellant did not purchase a valid P&D ticket as per the Terms and Conditions of parking.
Signage and Machines:	The signage clearly states: “PAY AND DISPLAY CAR PARK”. The entrance signs state, “Any driver/registered keeper remaining in this Car Park 15 minutes after entry agree in full to the Terms and Conditions” and, “Customers have 15 minutes from entering the Car Park to purchase a valid Pay and Display ticket”. Machine inserts at the point of sale state: “Enter Full Vehicle Registration”. There are 86 highly prominent signs on site including 5 Entrance Signs (2000mm x 1000mm) 29 Information signs (1220mm x 660mm) 17 Tariff boards (1200mm x 1000mm), 14 “Pay Here” signs erected at a height of approximately 2.5 metres and 21 Disabled P&D signs situated at key locations throughout the area. Photographs confirm that signage can clearly be observed throughout the car park including the entrance - see Section F. Machines at the Peel Centre Car Park benefit from movement sensors that activate an audio message when approached, stating: “Please ensure you enter your full vehicle registration number when purchasing your ticket. I repeat, please enter your full vehicle registration number when purchasing your ticket. Thank you” (see Section: G for a copy of this audio file). ANPR cameras show that the appellant’s vehicle entered Zone 2 of the Peel Centre Car Park ‘StockPeelZ2In’ and later exited through Zone 2 ‘StockPeelZ2Out’. Therefore, the appellant’s vehicle has remained in an area of the car park which itself has 2 Entrance Signs, 2 Disabled P&D Signs, 11 Information Signs and 5 Tariff Boards.
Summary of Evidence:	The Peel Centre Car Park is private land and motorists are allowed to enter that land for the purpose of parking their vehicle, provided that they abide by any clearly displayed conditions of parking. It is clear that the terms of parking stated that a Pay and Display ticket must be purchased and displayed or the motorist would face liability for a Parking Charge Notice. Signage states: “Customers have 15 minutes from entering the car park to purchase a valid Pay & Display ticket”. A reasonable grace period of 15 minutes is permitted on site to allow motorists to park, read the Terms and Conditions and either leave the site or purchase a valid pay and display ticket as per the Terms and Conditions displayed. Management of the Peel Centre Car Park is conducted by ANPR cameras which take photographs of vehicle registration numbers as vehicles enter and leave the car park. The VRM images are compared with tickets purchased at the P&D machines, any vehicle that remains on the car park for 15 minutes and fails to purchase a valid P&D ticket will result in a Parking Charge Notice being issued. The images showing entry and exit of the appellant’s vehicle at the Peel Centre Car Park can be found in Section: F. Machines at the Peel Centre Car Park benefit from movement sensors that activate an audio message, which states: “Please ensure you enter your full vehicle registration number when purchasing your ticket. I repeat, please enter your full vehicle registration number when purchasing your ticket. Thank you” (Section: G for a copy of this audio file). The Tariff board at the point of sale states: “Parking Charge Notices will be issued for the following: - Failure to purchase a valid Pay and Display ticket within 15 minutes following entry to the car park”. A comprehensive search of the P&D Ticket Database, which records details of all P&D tickets purchased at the Peel Centre, shows that no ticket was purchased that either matched or resembled the appellant’s VRM ‘x’ for his stay in the car park, to the end of the 15 minute allowed grace period’. (Section G) The appellant did not purchase a valid P&D ticket as per the Terms and Conditions of parking. In his appeals to Excel Parking Ltd, at no time does the appellant address the key point that his vehicle entered a P&D car park and failed to purchase a ticket, as required by the terms and conditions displayed, and he offers no mitigation or reason in respect of that contravention. In response to the appellant’s comments in relation to the amount of the PCN charge, our charges are neither extravagant nor unconscionable and as such are commercially justified, in line with industry standards and legitimately enforceable. We would refer to the recent judgement handed down by the Court of Appeal in the case of ParkingEye v Beavis [2015] EWCA Civ 402. The signs on site give clear notice that any motorist parking agrees to pay a fixed sum or parking charge. The construction of the contract is such that loss does not need to be demonstrated or proved. This is because the contract is for a specified sum in the event that the motorist parks outside the agreed terms, By parking and not displaying a valid Pay & Display ticket, the appellant agreed to pay the parking charge. We would contend that it is too late now for the motorist to indicate that they are unhappy with the parking charge as this should have been done at the time of accepting the contract. When using the private land in question, the motorist freely entered into an agreement to abide by the terms and conditions applicable in return for permission to use that land. It was the motorist’s responsibility to ensure that they abided by the advertised terms and conditions of that private land. If the motorist was unhappy with the contract terms clearly displayed on signage, they should not have remained on the land. The appellant goes on to state that the signage is unclear and non-compliant. We maintain that our signs are clearly visible and meet the requirements set by the British Parking Association guidelines. As established members of the British Parking Association, we adhere to their Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks. This Code of Practice gives recommendations in regards to the signage within the car park. The signs within the car park fully comply with the recommendations outlined in the Code of Practice and are therefore deemed reasonable. In law a person can enter into a contract either by expressly agreeing to do so or by acting in such a way that he/she can be said to have implied agreement to enter into a contract. Where notice is given to a motorist of the consequences of parking in a particular area, by implication a motorist enters into a contract with Excel Parking Services Ltd and accepts the terms set out in the Notice by proceeding to park. The appellant also questions the rights of Excel Parking Services Ltd to issue Parking Charge Notices at the Peel Centre Car Park and requests a copy of the contract with the landowner. A statement of authority signed by the landowner, which states: “The operator is authorised by the landowner to issue Parking Charge Notices where vehicles are parked on the site in a manner not permitted under the Terms and Conditions of parking” and “The operator is authorised by the landowner to pursue the outstanding parking charges in accordance with the British Parking Association’s Approved Operator Scheme Code of Practice”, can be found in Section G and is marked ‘Confidential’. If the POPLA adjudicator requires further information not covered in this document, then it can be produced at a later date on request. This is provided for the sole purpose of evaluation of the information submitted herewith and, in consideration of receipt of this document, the recipient agrees to maintain such information in confidence and not to reproduce or otherwise disclose this information to any person. The appellant also questions the use of ANPR cameras at the Peel Centre Car Park and its compliance with Section 4 of the Protection of Freedoms Act 2012 (PoFA). Section 21 of the BPA Code of Practice states: “You may use camera technology to manage, control and enforce parking in private car parks, as log as you do so 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 use the data captured by ANPR cameras for”. Section 21 has numerous sub sections which regulate quality checks, maintenance of equipment and use of data in relation to ANPR images. Excel Parking Services complies with all sections and subsections as detailed in the Code of Practice. Signage states: “ANPR – Automatic Number Plate Recognition Cameras are in operation in the car park” and, “This site may be monitored by CCTV/ANPR parking enforcement cameras for the purpose of ensuring compliance with the Terms and Conditions of this car park. Parking Charge Notices may be issued by post”. The ANPR cameras and Pay and Display machines have an onboard clock which is synchronised using standard Network Time Protocol (NTP) process over an internet based link to the time signal provided by the National Physical Laboratories in the UK, which is the UK’s National Measurement Institution. The Network Time Protocol (NTP) is the most widely used method for transmitting time information across the Internet. NTP takes as its time reference the international atomic time scale, Coordinated Universal Time (UTC), which is kept within 0.9 seconds of the astronomical time scale Greenwich Mean Time by the insertion of leap seconds when necessary. NTP aims to provide the best attainable synchronisation to UTC by using a hierarchy of time servers. At the top are those servers, known as stratum 1, that obtain their time from an external source of UTC such as an off-air receiver for GPS or radio time signals. Servers synchronised to one or more stratum 1 servers are known as stratum 2, and so on. The ANPR cameras and Pay and Display equipment are daily synchronised to the same time source at the National Physical Laboratory using NTP by running client software within the equipment operating system. The client sends periodic time requests across the Internet and each call to a server results in an exchange of time-stamped packets of data that allow the client software to estimate the network delay and the rate offset between the client computer’s clock and the server, and uses this information to adjust the clock. In doing this process daily the system ensures that the time held upon the camera correlates to the time held on the Pay and Display machines such that any natural drift inherent within any electrical device is minimised to milliseconds within any day. At each synchronisation of the time service, the equipment reports a successful log of the connection with the NTP and this is used to verify that the equipment is operating with normal parameters. The cameras at the site are networked into a monitoring system, which records and alerts real-time any problems seen with any of our devices or cameras and this is then used to address faults or action repairs. All P&D machines periodically connect to the Excel Parking Services ASLAN monitoring system which is located on a physical Windows server located in the secure IT. The ASLAN server is synchronised automatically using the Network Time Protocol. When P&D machines connect they report activities such as open doors, faults and cash collections. As part of the scheduled connections the devices synchronise their time on each connection which can be upwards of 15 times per day. We must reiterate that the appellant did not purchase a valid P&D ticket as per the Terms and Conditions of parking at the Peel Centre, which is a privately owned and operated car park. There are 86 highly prominent signs on the Peel Centre car park which include 5 Entrance Signs 29 Information signs, 17 Tariff boards and 14 “Pay Here” signs erected at a height of approximately 2.5 metres which are situated at key locations throughout the area and 21 Disabled P&D signs. Photographs confirm that signage can clearly be observed throughout the car park including those at the entrance. (Section F) There is a helpline number located at the bottom of all the signage on site which is available to all motorists who have any queries or are experiencing difficulties. This was not utilised by the appellant. When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is the motorist’s responsibility to ensure that he or she abides by any clearly displayed conditions of parking. It is clear that the terms of parking stated that a valid pay and display ticket must be purchased and displayed containing the vehicles full VRM or the motorist would face liability for a parking charge. The driver failed to purchase a valid ticket, the appellant, as the registered keeper, subsequently became liable for a parking charge notice as per the Terms and Conditions displayed.
Key Events:	09/12/2014: PCN issued 22/12/2014: Appeal received via post 05/01/2015: Rejection issued 20/01/2015: POPLA notification received

[mystery1]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

I'll take a look this weekend.

M1

[mystery1]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

I see nothing to worry about there. Keeper liability has them screwed.

M1

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

I see nothing to worry about there. Keeper liability has them screwed.

M1

I had missed this [MENTION=5354]mystery1[/MENTION].. Thanks very much for all your help, you've been great. I'll let you know the outcome when I get it.

Thanks again.