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Parking Eye Appeal Refused, now POPLA

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  • Redx
    Redx Posts: 38,084
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    collies carer is probably correct in that diagnosis

    but why not leave it in and add something along the lines of "pending the outcome of the Beavis case at the Supreme Court"

    after all, things may look different when that outcome is known (albeit it may be years away)

    by the time this gets to a popla decision the appeal will be lodged, and popla have stated that they will look into the effect this has on appeals after that time
  • Northlakes
    Northlakes Posts: 826
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    edited 24 May 2015 at 9:34PM
    Can you put the paragraph headings in bold type and space out so it doesn't look one long diatribe.

    I have seen on Pepipoo a UKPC Beavis rebuttal but you need to find out the local authority car park penalties as these could provide a 'benchmark' of what might be considered extravagant and unconscionable. It might provide a useful pointer to which way POPLA will adjudicate appeals in future.

    Yours could be adapted to the following,

    Beavis Case

    In my appeal rejection ParkingEye claim the recent case, Parking Eye v Beavis heard at the Court of Appeal gives justification to their claim.
    I contend that there are few similarities as the penalties imposed in my local authority car parks are £___ and this is reduced even after appeal by ___ %.
    Therefore I contend that the charge imposed by ParkingEye is indeed extravagant.

    Parking Eye were making payments to that landowner for a parking management concession conferring what might be considered as landowner rights. It was argued by Parking Eye that it was necessary for them to recover these sums by the issuing of parking charge notices.
    I contend that, unless a similar contract is in place with this landowner, there can be no argument in this case of commercial justification as no loss to them was involved.

    Finally I would state that the Beavis case is still subject to appeal and until this matter is finally resolved any claims by ParkingEye are without merit.

    Hope this helps.
    REVENGE IS A DISH BETTER SERVED COLD
  • FFairy
    FFairy Posts: 13
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    Many many thanks for all your assistance on this, I will make the suggested changes and the Beavis para suggested above will also be added in. As I haven't been to the car park in question for some time, and am not familiar with all the signage or local authority car park charges, I intend to check these out before submitting the appeal so I can ensure I put forward every possible argument to the POPLA assessors. I have a few days yet so will be back to update with a final draft.
    Once again, I really appreciate all this help and am very grateful to all the knowledgeable posters who have guided me!
  • FFairy
    FFairy Posts: 13
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    I have confirmed the signage in the car park does state parking can be purchased at any time, and the relevant charges. However the signage is placed at some height, is difficult to read by a driver and I think can be contested on the grounds used. I have also confirmed Local Authority penalties. A final draft is below, hope this should be sufficient to submit to POPLA... Thanks again for all the help.

    Re: Parking Eye PCN: xxxxxxxxxx
    POPLA Code:

    I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:

    1) No genuine pre-estimate of loss
    2) No standing or authority to pursue charges or form contracts with drivers
    3) The signage was inadequate so there was no valid contract formed
    4) The ANPR system is unreliable and neither synchronised nor accurate
    5. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).

    1) No genuine pre-estimate of loss
    This car park is limited to 2 hours of free parking; a ticket must be purchased to remaining beyond 2 hours. The driver is alleged to have remained in the car park for 2 hours and 12 minutes. The driver informs me that the car was parked correctly in a designated parking space and did not contravene any parking regulations; the car park had a number of unoccupied spaces; therefore there can be no legitimate claim of loss of a result of this parking event.
    In this case, the £100 charge being asked for, by far exceeds the cost to the landowner as parking is free for 2 hours, therefore there is no justified loss by the landowner for the 12 minutes the driver allegedly over stayed. I also note that the cameras do not monitor the time taken to park the vehicle, so entering and exiting the car park and reading the notices do not constitute "parking time".

    It is clear that this charge is a penalty as Parking Eye, or the landowner will not make any money out of the contract unless drivers ‘overstay’.
    In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.

    The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park had a number of available parking spaces.

    The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.

    The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):

    The British Parking Association Code of Practice uses the word 'MUST':
    "19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.''
    Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Supreme Court by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

    ''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

    This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.'' Therefore Parking Eye cannot reject the appeal on the basis of the most recent Beavis decision, as it has attempted to do so, pending the outcome of the Beavis case at the Supreme Court


    2) No standing or authority to pursue charges nor form contracts with drivers


    In my appeal rejection ParkingEye claim the recent case Parking Eye v Beavis heard at the Court of Appeal gives justification to their claim.
    I contend that there are few similarities as the penalties imposed in my local authority car parks are £60 and this is reduced even after appeal by 50%.
    Therefore I contend that the charge imposed by ParkingEye is indeed extravagant.
    Parking Eye were making payments to that landowner for a parking management concession conferring what might be considered as landowner rights. It was argued by Parking Eye that it was necessary for them to recover these sums by the issuing of parking charge notices.
    I contend that, unless a similar contract is in place with this landowner, there can be no argument in this case of commercial justification as no loss to them was involved.
    Finally I would state that the Beavis case is still subject to appeal and until this matter is finally resolved any claims by ParkingEye are without merit.

    This Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. I contend that they merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. Authority to merely 'issue tickets' is not the same authority as a right to form contracts in their own right, with visiting drivers. As a commercial site agent acting under an agency agreement 'on behalf of' the principal, ParkingEye has negative responsibility and no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA CoP.

    I put ParkingEye to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that ParkingEye can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows ParkingEye to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that ParkingEye can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.


    3) The signage was inadequate so there was no valid contract formed

    The occupants of the car recall seeing no signs on entrance to the car park. The date and time of the alleged incident would also have meant daylight would have been fast fading meaning that any signs in the car park may have been difficult to see and read.

    Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit - and it can be seen from ParkingEye's own photos of an isolated numberplate at dusk, that the entrance (where signs must be clear) was in fact very dark. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied

    4) The ANPR system is unreliable and neither synchronised nor accurate

    If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 12 minutes more than the free time allocated. And yet their evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening.

    This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. It was approaching darkness and if there was such a sign at all then it was neither lit nor prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.

    In addition I question the entire reliability of the system. I require that ParkingEye 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 my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

    So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. 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 "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable as the evidence in the Fox-Jones case.

    5. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).

    In order to pursue Keeper Liability under the POFA, ParkingEye must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the “Notice to Keeper” (‘NtK’) as per para. 9 Sch 4 of the Act.
    The NTK fails due to the following reasons:

    The following points (A)-(C) may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:
    (A) The 'period of parking' is not 'specified', only the times the car was seen in traffic on arrival and on the final time it left that day, with a statement of ‘Time in Car Park’. It does not specify the period of parking as demanded under POFA 2012 paragraph 8 section 2 (a). Parking is a specific action and that is quite different from simply being in a car park. There's no evidence of parking at all.
    (B) It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified). POFA requires that a NTK describes any 'outstanding' 'unpaid' charges which the driver owed as at a time not later than the DAY BEFORE the issue of the postal NTK. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the day the NTK was issued, because it only arises and could be described as 'unpaid', if at all, at/after the time of receipt of the NTK by the keeper. The inflated PCN amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff that the driver owed before the NTK was issued, to be stated - and that this is the only sum that can be pursued from a registered keeper.
    (C) The NTK fails to show the arrangements for complaints and the geographical address of the client/landowner, since this Operator is an agent . This is a requirement for all consumer contracts since June 2014, in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regs 2013 and also a breach of the POFA not to include full details of such arrangements for complaints.

    The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.

    In this case the driver has not been identified so the charge has no legal basis to be enforced against me.

    I request that my appeal is allowed.
    Yours faithfully,
  • Northlakes
    Northlakes Posts: 826
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    Can I suggest a slight amendment regarding the additional wording post Beavis.

    Can you put this in heading 1 under paragraph 1

    In my appeal rejection ParkingEye claim the recent case Parking Eye v Beavis heard at the Court of Appeal gives justification to their claim.
    I feel that there are few similarities as the penalties imposed in my local authority car parks are £60 and this is reduced even after appeal by 50%. Therefore I contend that the charge imposed by ParkingEye is indeed extravagant.

    The other bit leave where it is.

    Best of luck.
    REVENGE IS A DISH BETTER SERVED COLD
  • FFairy
    FFairy Posts: 13
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    Thanks for that, amendment has been made and the POPLA appeal submitted this evening.
    Hope to hear we have been successful soon! I will be back to update the outcome. Appreciate all the help from the experts here!
  • I work on a retail park which has I've just found out has 2 parking enforcement companies Parking eye on 1 side and a different company on the side I work on.
    Over christmas I popped into a store on the parking eye side to buy something, when I came out the carpark was gridlocked so I left my car there and worked my full shift, Parking eye sent me a charge notice, I replied back stating I worked there (at the time neither myself nor any member of staff in my store was aware it was a different parking company)
    They asked me for proof I sent a signed letter from the manager and a copy of my shift pattern. I received another letter from them asking for proof, No acknowledgement of the 1st one. I re sent the proofs I was asked for.
    Then I received a letter stating my appeal was unsuccessful on the grounds I had parked too long, Again no acknowledgement of my proofs.
    I followed the appeals procedure for POPLA, they turned my claim down as my car is not on Parking eyes exemption list.
    I feel this is unfair as its 1 retail park with 1 name and the same address, it's unreasonable to expect different areas to have different parking companies, In hindsight there are driving parking signs but why would someone re-check those if it's a retail park Ive been at for 4 years.

    Do I pay up or contest it?
  • Redx
    Redx Posts: 38,084
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    I work on a retail park which has I've just found out has 2 parking enforcement companies Parking eye on 1 side and a different company on the side I work on.
    Over christmas I popped into a store on the parking eye side to buy something, when I came out the carpark was gridlocked so I left my car there and worked my full shift, Parking eye sent me a charge notice, I replied back stating I worked there (at the time neither myself nor any member of staff in my store was aware it was a different parking company)
    They asked me for proof I sent a signed letter from the manager and a copy of my shift pattern. I received another letter from them asking for proof, No acknowledgement of the 1st one. I re sent the proofs I was asked for.
    Then I received a letter stating my appeal was unsuccessful on the grounds I had parked too long, Again no acknowledgement of my proofs.
    I followed the appeals procedure for POPLA, they turned my claim down as my car is not on Parking eyes exemption list.
    I feel this is unfair as its 1 retail park with 1 name and the same address, it's unreasonable to expect different areas to have different parking companies, In hindsight there are driving parking signs but why would someone re-check those if it's a retail park Ive been at for 4 years.

    Do I pay up or contest it?

    start a new thread and you will get bespoke advice, we dont reply to questions that hijack somebody elses thread

    any posts you make in this thread should be helping the OP, not yourself

    so please start your own thread using the NEW THREAD button

    thank you
  • FFairy
    FFairy Posts: 13
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    Further to my POPLA appeal, I have had the following reply dated July 2016, as I was busy I have not replied/responded

    Dear Sir/Madam
    Car Park Operator ParkingEye Ltd
    Appellant
    Appeal Verification Code (“the Appeal”) XXXXX
    Parking Charge Reference Number XXXXX
    Wright Hassall Reference POPLA
    Appeal Outcome Rejected
    We have been appointed by the British Parking Association (“BPA”) to act as an independent appeals body,
    under the brand of Parking on Private Land Appeals (“POPLA”), in respect of the Appeal and to consider both the Appellants and the Car Park Operator’s positions before providing a decision to the parties. We are not instructed to act on behalf of either party.
    We confirm that we have considered the appeal, taking into account all of the evidence at hand and applying the prevailing legislation and with reference to the BPA Code of Practice, and have decided to reject the Appeal on this occasion. To avoid further action, including Court action, the Appellant can make payment to the Car Park Operator in the next 28 days. The Parking Charge Notice (“PCN”) will not be cancelled.
    Reasons for dismissing the Appeal
    • The Appellant stated in the Appeal that the amount of the parking charge is unreasonable. Pursuant to the guidance set out in the Supreme Court’s decision in ParkingEye v Beavis and in accordance with the BPA Code of Practice, a reasonable charge would be £100.00. As the charge the Car Park Operator has imposed is equal to or less than £100.00, we have no option but to reject the Appeal.
    • The Appellant has stated in the Appeal that the signage at the car park is not adequate and that they were unaware that they had entered into a contract by remaining at the location. Upon reviewing the evidence provided by both parties we contend that the signage is adequate and does comply with the BPA Code of Practice. Accordingly, the Appeal is rejected.
    • The Appellant has requested evidence that the Car Park Operator has a legal right to manage the site. We are in receipt of sufficient evidence from the Car Park Operator to satisfy us that the Car Park Operator does have a legal right to manage parking at this location and to issue Parking Charge Notices. Accordingly, the Appeal is rejected.
    • The Appellant has stated in the Appeal that the ANPR system was not synchronised and/or properly maintained. Upon reviewing the evidence provided, there is no evidence to suggest that the ANPR system was not correctly synchronised and maintained in accordance with the BPA Code of Practice.

    Accordingly the Appeal is rejected.
    • The Appellant has stated in the Appeal that the Notice to Keeper failed to comply with the Protection of Freedoms Act 2012 (“POFA”) in that all the relevant information was not present on the Notice to Keeper. From the evidence provided it would appear that all the information required under POFA has been provided on the Notice to Keeper and the Notice to Keeper is fully compliant with POFA.
    Accordingly, the Appeal is dismissed.
    To the Appellant
    To avoid further action, including Court action, the Appellant can make payment to the Car Park Operator in the next 28 days. The Parking Charge Notice will not be cancelled.
    To the Car Park Operator
    As the Appeal has been rejected, you must allow the Appellant 28 days to make payment. If payment is not forthcoming, you may take further action to recover the PCN.
    This is the final decision in this Appeal. We are not able to respond to any future correspondence from either party, nor are we able to provide any information to either party over the telephone.

    Yours faithfully
    WRIGHT HASSALL LLP
    On behalf of Parking on Private Land Appeals (POPLA)
  • Half_way
    Half_way Posts: 7,029
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    Complaint to he retail park now Wright Hassle is anything but impartial or independent demand they cancel the charge.

    Also they have used the Beavis case in what can only be asumed to be a manner to deliberatly defraud you of moeny, the Supreme court stated this about the case
    supreme%2Bcourt%2Btweet.jpg
    Also see the Theresa may thread
    From the Plain Language Commission:

    "The BPA has surely become one of the most socially dangerous organisations in the UK"
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