Parking Eye - New Driver

pappa_golf wrote: »

however after you have exhausted time and effort submitting an appeal (mentioning first ticket) they will simply not bother to rubuke it and therefore not pay £27

Thanks for replying PG but I don't get this last bit. Can you explain it?

Appeal to Parking Charge via POPLA

Re: ParkingEye PCN, reference code: xxxxxx/xxxxxx
POPLA Code: xxxxxxxxxx

I am the registered keeper of the vehicle related to the parking charge notice (reference above).

I contend that I am not liable for the parking charge on the grounds listed below and request that they are all considered.

1. Keeper Liability Requirements and the Protection of Freedom Act
2. ANPR Accuracy and Compliance
3. No Contract was entered into between the Parking Eye and the Driver or Registered keeper
4. 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 with ParkingEye.
5. Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
6. Unreliable “Pay by Text” system.
7. Parking Charge Notice 502144/574369 Cancelled.

1. 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.

2. 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 FoxJones
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. 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 watching the entance/exit. 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.

3. No Contract was entered into between the Parking Eye and the Driver or Registered keeper 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.

4. 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 with ParkingEye. The signage is, I believe, noncompliant.
The signs are badly placed, full of overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand.
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 fixed amount that Parking Eye is now demanding, rather than simply the nominal amount presumably due in a machine on site.
The terms and conditions sign on the ground floor, (where the car was parked), is not only in a small font for the amount of wording, (over 1000 words), but does not at any time mention ParkingEye or any penalty charge. How can any driver agree to terms and conditions that does not involve ParkingEye or offer a contract from ParkingEye. A picture of the signage is attached clearly showing that the words “Brittania Parking” has been covered over and not replaced with “ParkingEye”. 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. 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 'parking charges' was sufficiently prominent on any terms and conditions sign 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. I contend that the signs and any core parking terms ParkingEye are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I
contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

5. Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
ParkingEye has not produced any evidence to show that they have any legal right to issue charges on behalf of the landowner. They have provided a witness statement but not any of the requested detail to show detail of the contract terms (such as revenue sharing, genuine intentions of these
restrictions and charges, set amounts to charge for each stated contravention, etc.). There is also no proof that the alleged signatory on behalf of the landowner has ever seen the relevant contract or, indeed, is even an employee of the landowner. It is my contention that this witness statement should be disregarded as unreliable, not proving full BPA compliance and is not sufficient to prove that Parking Eye have the necessary legal standing at this location to bring a claim in their own name nor to form any contractual relationship between the landowner and motorists. I detailed this in Section 4 of my appeal letter, yet ParkingEye has chosen to ignore this.
I also refer to the fact that the “old” POPLA service ALWAYS found in favour of the appellant where the PPC had not proved that they had the authority of the landowner, in accordance with Section 7 of the BPA Code of Practice. Please note that this practice included disregarding any evidence not shown to an appellant, so the operator cannot add it now for Wright Hassel to consider. The
Operator has not shown a full unredacted copy of the contract that allows them to act (as detailed above).
For clarity, the BPA Code clearly states that
“The written authorisation must also set out:
a, the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
b, any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
c, any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement.
d, who has the responsibility for putting up and maintaining signs.
e, the definition of the services provided by each party to the agreement”.
ParkingEye has not provided the adjudicator any evidence to show that they have authority to issue charges in line with the BPA Code. The Operators evidence fails to show any of the BPA requirements then the omissions must be interpreted in the way which favours the consumer. I request that you uphold my appeal on this point.
In addition, I refer to POPLA case reference 1771073004 where the assessor ruled that a witness statement was not valid. This witness statement, based on the template provided by the POPLA Lead Adjudicator, concerned evidence which could have been produced but was not. This is exactly analogous to the current case if the operator produces a witness statement regarding contract
documents between the operator and the landowner; the alleged contract is a document which the operator could produce (if it exists) but chooses not to. I request therefore that the “new” POPLA is consistent with the “old” POPLA scheme in its processes and also rules any witness statement produced by the operator invalid.

6. Unreliable “Pay by Text” system.
In the car park in question there are 4 payment machines on the ground floor, 2 operated by Parking Eye and 2 operated by Britannia Parking, (at the time of parking the Britannia machines were not covered in any way). Each have different instructions for paying by text on the side of the machines
which is highly confusing.
The driver followed the Parking Eye “Pay By Phone” instructions exactly as shown on the signage at the payment machine and then via the text that followed. As such the driver believed the necessary payment had been made, (pictures of the texts between the driver and ParkingEye are attached).
When an incorrect text was sent the system replied with “Sorry your message is in the wrong format”. When a 2nd text was sent there was no reply giving the impression that payment had successfully been made. The "unfit for purpose" payment system caused a frustration of contract so neither myself or the driver can be held liable.

7. Parking Charge Notice 502144/574369 Cancelled.
On the previous day to this parking charge the driver made the same payment by text, and received an identical parking charge, (502144/574369), shortly afterwards. Conditions for both charges were identical. Identical appeals to both charges were made to ParkingEye.
The parking charge 502144/574369 was cancelled on 4th October 2016. No reasons for the cancellation of the charge were given by ParkingEye. It is reasonable to expect that some sort of consistency should exist when making decisions on identical cases, therefore I expect ParkingEye to
explain why one charge was cancelled and one charge was not. ParkingEye have failed to operate in a 'reasonable, consistent and transparent manner' for both appeals.

The cancellation notice is attached.