ParkingEye and Blue Badge

I have what I hope is the final draft for my appeal. Please review and advise:

ParkingEye
P.O Box 565
Chorley
PR6 6HT

Dear Sir/Madam,
Re: Parking Charge Reference number:XXXXXXX: POPLA Ref: XXXXXX
I am the registered keeper of the above vehicle and have received the above demand from you.
My ground for this appeal are as follows:
• Insufficient information provided by signage
• No genuine pre-estimate of loss
• The notice to keeper is not compliant with the POFA 2012 – no keeper liability
• Proprietary Interest
A) Insufficient information provided by signage.
Grace periods
13.1 Your approach to parking management must allow adriver who enters your car park but decides not to park,to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.
Disabled motorists
16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.
16.2 ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine.
16.3 Operators of off-street car parks do not have to recognise the Blue Badge scheme. But many choose to do so to meet their obligations under the Equality Act. Although a Blue Badge is not issued to all disabled people it is issued to those with mobility problems. So it is a good way for parking operators to identify people who need special parking provision.
No genuine pre-estimate of loss
The charge is a penalty and not a genuine pre-estimate of loss. In its parking charge notice, ParkingEye has failed to provide sufficient evidence to justify the £100 loss the landowner might have incurred for the exceeded time the car was parked in its property. For this charge to be justified, a full breakdown of the costs ParkingEye has suffered as a result of the car being parked at the car park, is required and should add up to £100. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any car being parked at that car park.
This charge from ParkingEye is a third party business agent is an unenforceable penalty. The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal.
POPLA and ParkinEye will be also familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect ParkingEye might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage". My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.
C) Propriety interest
ParkingEye has stated in the letter declining the appeal, that a contract is formed with the driver via signage detailing the conditions under which a motorist is authorised to park. I find it hard to accept that a contract can be formed with lack of information on the signage around the carpark of how to pay for the parking. The Signage provided doesn’t provide enough information on the payment machines and this is clearly why so many people are failing to pay for the parking and being hit with such a charge. It also seems as this has been purposely done so that people will ‘fail to comply with the terms & conditions’ I for this reason do not believe that the driver could have been entered into a contract with ParkingEye for the property of where the driver parked because they didn’t fail to comply with any of the terms & conditions they were simply mislead by the inadequate information supplied by the signage.
I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkingEye.
D) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
At this ANPR car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. These 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!
In the NTK before me I can see that the car either not purchased the appropriate parking time or remained at the car park for longer than permitted. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff).
These are the omission from POFA 2012 in the NTK issued:
''9(2)The notice must—
(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))”
The NTK specifically fails on all counts. It even fails to describe the specific circumstances for such a parking charge amount due.
The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.
Membership of the ApprovedOperator Scheme does require the Operator to have clear authorisation from thelandowner (if the Operator is not the landowner), to manage and enforceparking. This is set out in the BPA Code of Practice. Therefore the Operator islikely to have authority to issue parking charge notices.
However, as the point was raised by the Appellant, then the Operator shouldaddress it by producing such evidence as they believe shows that they do haveauthority. No evidence has been produced to address this issue.
Additional circumstances – The picture shown on your letter shows the time the car entered Aire street and NOT the time shown on parking ticket. The picture also clearly shows a “Blue Disabled Badge” displayed in the windscreen, Blue Badge supplied. There are no disabled parking bays in Aire Street. As you will be able to see from the CCTV cameras focused upon the payment machines, the driver attempted to key in the registration to pay for the parking charge several times on the meters located to Aire Street Leeds. The driver of the vehicle also drove to a second payment meter located at the far side of the car park on finding it would not accept the coinage when they tried to pay, the driver then returned to the payment meter again located by the entrance to Aire Street Leeds. The driver attempted to key in the registration of the vehicle on both machines several times as can clearly be seen by the CCTV cameras located above the machines. As can be seen on the CCTV footage, the driver and another driver of a different vehicle both attempted to make payments to which the machines would not accept and simply returned to its original screen. It is not being disputed that the vehicle exceeded the 5 hour free stay however it is being disputed that a payment could not be made due to a fault with your machinery. The driver also attempted several times to phone the number given to purchase extra parking time. The system kept asking for “Reference number on my letter”! You also say that extra parking time can be purchased via machine, it cannot, as it would not accept information! The machine instantly took the money (with no change given!) A ticket WAS purchased for the adquate amount of time the vehicle was parked in Aire Street parking. Due to the inconsiderate parking of other drivers and the fact that this is an unmanned car park. The driver had considerable trouble attempting to leave the car park

This concludes my POPLA appeal.
Yours faithfully,

It has the blurb about after 29 days

I have what I hope is the final draft for my appeal. Please review and advise:

ParkingEye
P.O Box 565
Chorley
PR6 6HT

Dear Sir/Madam,
Re: Parking Charge Reference number:XXXXXXX: Date:
POPLA Ref: XXXXXX
On the above date, the quoted Parking Charge Notice was issued quoting “Not purchasing the appropriate parking time or by remaining at the car park for longer than permitted”. This charge has been contested directly with ParkingEye and rejected with a valid POPLA code.
I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.
1. No genuine pre-estimate of loss
2. Lack of standing/authority from landowner to issue tickets or pursue charges in their own name at court
3. Signage non-compliant with the BPA Code of Practice and no contract formed with driver
4. Unfair terms
5. The ANPR System Usage
6. The ANPR system is unreliable and neither synchronised nor accurate
7. Grace Periods
1) NO GENUINE PRE-ESTIMATE OF LOSS
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator.
ParkingEye must therefore be required to explain their charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so ParkingEye have no cause of action to pursue this charge.
I specified in my original appeal that I would like to see a breakdown of the costs incurred by ParkingEye as a result of the alleged breach. ParkingEye have failed to provide this information, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.
I put it to ParkingEye to prove that a loss has occurred at the time that this charge was levied and ParkingEye 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, such that the charge is a genuine pre-estimate of loss.
If ParkingEye claim that the charge is 'commercially justified' and cite 'ParkingEye v Beavis & Wardley', I put forth that such a claim is irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''
My case is the same and Parking Eye’s contract with The Sun public house Chesterfield is nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, ParkingEye are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point 2.
2) LACK OF STANDING/AUTHORITY FROM LANDOWNER TO ISSUE TICKETS OR PURSUE CHARGES IN THEIR OWN NAME AT COURT
ParkingEye have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is set out in section 7.2 paragraph (f): “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that ParkingEye do not have the legal capacity to enforce such a charge.
I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect ParkingEye are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable ParkingEye to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” or site agreements instead of the relevant contract, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent.. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.
3) SIGNAGE NON COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO CONTRACT FORMED WITH DRIVER
Upon receiving the Parking Charge Notice, I, as keeper of the vehicle, have since visited the site and argue the following :
3.1) I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B.. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be read at eye level, for a driver in moving traffic on arrival. The signs on entry are up on poles with the spy cameras attached and these cannot be read by a driver in their vehicle entering the car park. Stopping the vehicle before entering the car park to get out and read these is completely infeasible as this would cause an obstruction on a public highway and block the entrance to the car park.
3.2) A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. In this case, the driver did not see any sign, thus, there was no consideration/acceptance and no contract agreed between the parties.
As a POPLA Assessor has said previously in an adjudication:
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
ParkingEye needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding.
4) UNFAIR TERMS
The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’
Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
1(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil 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. (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.''
From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'
I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.
5) THE ANPR SYSTEM USAGE
Under paragraph 21.1 of the BPA Code of Practice it states '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'
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. If there was such a sign at all, it was not prominent, since the driver (nor the keeper on a more recent visit) did not see it. Photographic evidence of the existence of this sign was not provided by ParkingEye on appeal (see #5). There is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.
6) 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 360 minutes. And yet their evidence shows no parking time or evidence that the car was even parked, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event 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 have seen no evidence that they have complied with this section of the code (nor 21.1, 21.2 or 21.4) in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.
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 the 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 and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary and to show how these camera timings are synchronised with the pay and display machine.
7.)GRACE PERIODS
Your approach to parking management must allow adriver who enters your car park but decides not to park,to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.
Disabled motorists
16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.
16.2 ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine.
16.3 Operators of off-street car parks do not have to recognise the Blue Badge scheme. But many choose to do so to meet their obligations under the Equality Act. Although a Blue Badge is not issued to all disabled people it is issued to those with mobility problems. So it is a good way for parking operators to identify people who need special parking provision.
In the relevant “Act(s)” you have notified that your firm is entitled to be provided with details of the responsible driver. Therefore, by reason of the above paragraph, your firm essentially now needs to irrefutably identify the driver by providing evidence that clearly shows imageries of the responsible driver in charge of that vehicle at that time on that actual car park, as it has not been helpful with the inadequate PCN invoice images you have previously provided. Therefore, please furnish this information in order that this can be taken further, as with all the parties concerned it cannot fulfill these “Act(s)” so as to be in compliance.
Furthermore, for transparency purposes, please provide genuine copies of satisfactory evidence that you do hold a complete and valid “contract(s)” which also shows the names, addresses and signatures that your firm “Parking Eye” has the permitted authority from both the Landowner and its managing agent to this particular car park grounds.
Our business is governed by the “Partnership” and it reiterates that it still does not accept and rejects your directed and untenable PCN invoice demand for settlement. This is prejudiced as it indeed did not knowingly agree to enter into any such legal binding contact with your firm as a registered company keeper, it cannot therefore be held accountable for the activities or debt of this unknown driver, irrespectively.

Additional circumstances –
The picture shown on your letter shows the time the car entered Aire street and NOT the time shown on parking ticket. The picture also clearly shows a “Blue Disabled Badge” displayed in the windscreen, Blue Badge supplied. There are no disabled parking bays in Aire Street. As you will be able to see from the CCTV cameras focused upon the payment machines, the driver attempted to key in the registration to pay for the parking charge several times on the meters located to Aire Street Leeds. The driver of the vehicle also drove to a second payment meter located at the far side of the car park on finding it would not accept the coinage when they tried to pay, the driver then returned to the payment meter again located by the entrance to Aire Street Leeds. The driver attempted to key in the registration of the vehicle on both machines several times as can clearly be seen by the CCTV cameras located above the machines. As can be seen on the CCTV footage, the driver and another driver of a different vehicle both attempted to make payments to which the machines would not accept and simply returned to its original screen. It is not being disputed that the vehicle exceeded the 5 hour free stay however it is being disputed that a payment could not be made due to a fault with your machinery. The driver also attempted several times to phone the number given to purchase extra parking time. The system kept asking for “Reference number on my letter”! You also say that extra parking time can be purchased via machine, it cannot, as it would not accept information! The machine instantly took the money (with no change given!) A ticket WAS purchased for the adquate amount of time the vehicle was parked in Aire Street parking. Due to the inconsiderate parking of other drivers and the fact that this is an unmanned car park. The driver had considerable trouble attempting to leave the car park

This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if ParkingEye Ltd. fail to address and provide the necessary evidence as requested in the points highlighted above.

I thought I had read and copied from Sept Template. I went right back to Oct and am going to try the following. I hope I got it right this time:

I have what I hope is the final draft for my appeal. Please review and advise:

ParkingEye
P.O Box 565
Chorley
PR6 6HT

Dear Sir/Madam,
Re: Parking Charge Reference number:XXXXXXX: Date:
POPLA Ref: XXXXXX
On the above date, the quoted Parking Charge Notice was issued quoting “Not purchasing the appropriate parking time or by remaining at the car park for longer than permitted”. This charge has been contested directly with ParkingEye and rejected with a valid POPLA code.
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 require ParkingEye Ltd to provide 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 Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

2. 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
3. ANPR Accuracy and Compliance
I require ParkingEye Ltd to 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 ParkingEye Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as 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 Ltd in this case to show evidence to rebut this point: 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 this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.
In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which 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.
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.''
At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.
4. 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 people 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.
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 require ParkingEye Ltd to provide 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.
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 including, 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.
5. The car park had unclear, non-obvious, non-bpa-compliant signage leading to the driver not being aware that a parking contract was being offered at the time (evening).
As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount that Parking Eye is now demanding, rather than simply the nominal amount presumably due in a machine on site.
The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. The signs must be visible at all times of the day; these requirements were not met and I demand strict proof that those signs are visible at the time of darkness.
The BPA Code of Practice, Appendix B, under Contrast and illumination:
Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective. Clearly none of these conditions were met (see attached photographs of non-bpa-compliant, non-obvious signage).
6.Grace Periods
Your approach to parking management must allow adriver who enters your car park but decides not to park,to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.
Disabled motorists
16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.
16.2 ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine.
16.3 Operators of off-street car parks do not have to recognise the Blue Badge scheme. But many choose to do so to meet their obligations under the Equality Act. Although a Blue Badge is not issued to all disabled people it is issued to those with mobility problems. So it is a good way for parking operators to identify people who need special parking provision.
In the relevant “Act(s)” you have notified that your firm is entitled to be provided with details of the responsible driver. Therefore, by reason of the above paragraph, your firm essentially now needs to irrefutably identify the driver by providing evidence that clearly shows imageries of the responsible driver in charge of that vehicle at that time on that actual car park, as it has not been helpful with the inadequate PCN invoice images you have previously provided. Therefore, please furnish this information in order that this can be taken further, as with all the parties concerned it cannot fulfill these “Act(s)” so as to be in compliance.
Furthermore, for transparency purposes, please provide genuine copies of satisfactory evidence that you do hold a complete and valid “contract(s)” which also shows the names, addresses and signatures that your firm “Parking Eye” has the permitted authority from both the Landowner and its managing agent to this particular car park grounds.
Our business is governed by the “Partnership” and it reiterates that it still does not accept and rejects your directed and untenable PCN invoice demand for settlement. This is prejudiced as it indeed did not knowingly agree to enter into any such legal binding contact with your firm as a registered company keeper, it cannot therefore be held accountable for the activities or debt of this unknown driver, irrespectively.
Additional circumstances –
The picture shown on your letter shows the time the car entered Aire street and NOT the time shown on parking ticket. The picture also clearly shows a “Blue Disabled Badge” displayed in the windscreen, Blue Badge supplied. There are no disabled parking bays in Aire Street. As you will be able to see from the CCTV cameras focused upon the payment machines, the driver attempted to key in the registration to pay for the parking charge several times on the meters located to Aire Street Leeds. The driver of the vehicle also drove to a second payment meter located at the far side of the car park on finding it would not accept the coinage when they tried to pay, the driver then returned to the payment meter again located by the entrance to Aire Street Leeds. The driver attempted to key in the registration of the vehicle on both machines several times as can clearly be seen by the CCTV cameras located above the machines. As can be seen on the CCTV footage, the driver and another driver of a different vehicle both attempted to make payments to which the machines would not accept and simply returned to its original screen. It is not being disputed that the vehicle exceeded the 5 hour free stay however it is being disputed that a payment could not be made due to a fault with your machinery. The driver also attempted several times to phone the number given to purchase extra parking time. The system kept asking for “Reference number on my letter”! You also say that extra parking time can be purchased via machine, it cannot, as it would not accept information! The machine instantly took the money (with no change given!) A ticket WAS purchased for the adquate amount of time the vehicle was parked in Aire Street parking. Due to the inconsiderate parking of other drivers and the fact that this is an unmanned car park. The driver had considerable trouble attempting to leave the car park

This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if ParkingEye Ltd. fail to address and provide the necessary evidence as requested in the points highlighted above.

Thank you. As this is my draft appeal what do I do now. I think I saw somewhere that I can present my appeal on line is that correct? I am not too good with computers. Could I also mail it, what is the best way to pursue these procedures?

Thank you