Parking eye fistral beach

lcbandituk

still waiting for pics from fistral so not done a letter yet, still trying to get onto a link but it says it's broken

Coupon-mad

Sorry, have put the link right in post #38 now. It doesn't work when copied/pasted which is what I did!

lcbandituk

well here goes, is this suitable for a popla appeal?

POPLA appeal re Parking Eye ticket number xxxxxxxxxx

I am not liable for the parking charge. As such, the parking 'charge' notice (ticket) also exceeds the appropriate amount.

I am the registered keeper of the above car. I contend that the signs and any terms Parking Eye are relying upon were too small for a driver to see, read or understand. I request that POPLA should 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 in that car park (wording, position, clarity and positioning) 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 Martin Cutts, 2011).
BPA Operational Requirements Section 18.2 states ‘Entrance signs MUST follow some minimum general principles and be in standard format. The size of the sign MUST take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance.

The Notices I have received make it clear that Parking Eye is dealing with its claim in accordance with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (the Act) as such, there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged 'charge'. As already said, the BPA Code of Practice supports the need for strict compliance and Parking Eye has failed to comply once more, in the wording of their Notice to Keeper, which indicated that it requires a payment to be made to them but there is no specific identification of the “Creditor”. This may, in law, be Parking Eye or some other party. The Act requires a Notice to Keeper to have words to the effect that “The Creditor is….”

The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not indicate that the “creditor must be named, but “identified”. The driver is entitled to know the identity of the party with whom he has allegedly contracted and in failing to specifically identify the “Creditor”, Parking Eye has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.

Parking Eye has not provided me with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of title of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. I would require POPLA to check whether Parking Eye have provided a full copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists) and check whether that contract specifically enables them to pursue parking charges in the courts, and whether that contract is compliant with the requirements set out in the BPA Code of Practice.




There is no contract between Parking Eye and myself but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999:

Unfair Terms
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.
On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.

The BPA Code of Practice indicates at paragraph 13.4 that the Respondent should “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” The signage in the car park provides no indication of the period of time it allows and this is unreasonable, especially as Parking Eye rely on pictures taken of a vehicle at first arrival and then when leaving (not showing any evidence at all of actual parking time). So, there is no evidence that the respondent can produce to indicate that my vehicle was parked for more than the arbitrary time limit they are relying upon and no breach of contract by the driver can be demonstrated by their evidence at all. On that basis the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice.

I further contend that Parking Eye have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

Parking Eye are also on record from a letter to a third party which is in the public domain, as having stated in 2013 that all their charges are based on 'breach of contract'. I believe this is also the basis upon which Parking Eye have told the DVLA that they have had 'reasonable cause' to continuously obtain data by a permanent EDI link. So they are clearly attempting to enforce this charge under paragraph B 19.5 of the BPA Code of Practice and must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss or damages in this particular car park for this particular 'contravention'. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

Therefore, these 'charges' for an alleged 'breach' are in fact unlawful attempts at penalties, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011) and in the case with the same Operator, Parking Eye v Smith (Manchester County Court December 2011). Parking Eye will not be able to refute this fact - however many pages of evidence they may send to POPLA - and so this punitive charge is therefore unenforceable in law.

I respectfully request that this appeal be allowed.

Umkomaas

You seem to have got the hang of this; it should give PE something to think about in formulating their reply. Oh - just forgot, they just send POPLA their 40 page template bundle, so their reply will be the same old, same old which will eventually mean, I guess, POPLA won't even be reading them.

Looks fine from my point of view, but suggest leaving it another 24 hours (unless you're right up against the deadline) for others to have a look at it and make any observations.

bazster

See below. I fear you have fallen into the dangerous trap of cutting-and-pasting without ensuring you understand what you have cut-and-pasted. You need to carefully read what you have finished up with and ensure that (i) you understand each and every point and (ii) that each and every point is true.

lcbandituk wrote: »

well here goes, is this suitable for a popla appeal?

POPLA appeal re Parking Eye ticket number xxxxxxxxxx

I am not liable for the parking charge. As such, the parking 'charge' notice (ticket) also exceeds the appropriate amount.

I am the registered keeper of the above car. I contend that the signs and any terms Parking Eye are relying upon were too small and inappropriately poisitioned for a driver to see, read or understand therefore no contract can have been entered into. I request that POPLA should 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 in that car park (wording, position, clarity and positioning) 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 Martin Cutts, 2011).
BPA Operational Requirements Section 18.2 states ‘Entrance signs MUST follow some minimum general principles and be in standard format. The size of the sign MUST take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance.

The Notices I have received make it clear that Parking Eye is dealing with its claim in accordance with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (the Act) as such, there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged 'charge'. As already said, the BPA Code of Practice supports the need for strict compliance and Parking Eye has failed to comply once more, in the wording of their Notice to Keeper, which indicated that it requires a payment to be made to them but there is no specific identification of the “Creditor”. Have you read the Notice to check this this? PE notices do normally identify the creditor. On the other hand, they normally fail to specify which specific term or condition of parking has allegedly been breached (BUT YOU MUST CHECK THIS), as they usually have some generic wording amounting to "well it might've been this or it might've been that", as follows: "By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable". This fails to tell you what terms and conditions are in the signage or which one was allegedly breached. This may, in law, be Parking Eye or some other party. The Act requires a Notice to Keeper to have words to the effect that “The Creditor is….”

The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not indicate that the “creditor must be named, but “identified”. The driver is entitled to know the identity of the party with whom he has allegedly contracted and in failing to specifically identify the “Creditor”, Parking Eye has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.

Parking Eye has not provided me with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of title of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. I would require POPLA to check whether Parking Eye have provided a full copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists) and check whether that contract specifically enables them to pursue parking charges in the courts, and whether that contract is compliant with the requirements set out in the BPA Code of Practice.




There is no contract between Parking Eye and myself but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999:

Unfair Terms
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.
On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.

The BPA Code of Practice indicates at paragraph 13.4 that the Respondent should “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” The signage in the car park provides no indication of the period of time it allows and this is unreasonable, especially as Parking Eye rely on pictures taken of a vehicle at first arrival and then when leaving (not showing any evidence at all of actual parking time). So, there is no evidence that the respondent can produce to indicate that my vehicle was parked for more than the arbitrary time limit they are relying upon and no breach of contract by the driver can be demonstrated by their evidence at all. On that basis the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice.
The above paragraph would appear to be for an overstaying case, but as I understand it the car park in question is a pay-and-display car park so the question of "an arbitrary time limit" does not arise. Also, you stated originally that they were in the car park for 1 hour 20 minutes, so talking about grace periods just sounds silly: no-one will believe they were dithering over whether to park for 1 hour 20 minutes!

I further contend that Parking Eye have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

Parking Eye are also on record from a letter to a third party which is in the public domain, as having stated in 2013 that all their charges are based on 'breach of contract'. I believe this is also the basis upon which Parking Eye have told the DVLA that they have had 'reasonable cause' to continuously obtain data by a permanent EDI link. It is also clear from the following wording of the Notice to Keeper that they are alleging breach of contract rather than requesting payment of an agreed charge: (if you have a standard PE Notice to Keeper - YOU MUST CHECK THIS) "By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable". So they are clearly attempting to enforce this charge under paragraph B 19.5 of the BPA Code of Practice and must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss or damages in this particular car park for this particular 'contravention'. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. I have no ideas what this last sentence means.

Therefore, these 'charges' for an alleged 'breach' are in fact unlawful attempts at penalties, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011) and in the case with the same Operator, Parking Eye v Smith (Manchester County Court December 2011). Parking Eye will not be able to refute this fact - however many pages of evidence they may send to POPLA - and so this punitive charge is therefore unenforceable in law.

I respectfully request that this appeal be allowed.

Coupon-mad

''I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. I have no idea what this last sentence means.''


Thought I would answer as that's one of my sentences!

Sorry if it's not clear, what I mean by it is picking up on the word 'pre-estimate' as opposed to the possibility of a PPC showing a 'post-estimate' I suppose! So by the very word pre-estimate they would have had to have consulted with the landowner/occupier in advance of enforcement and come up with (probably) a sliding scale of justified loss.

Never seen a PPC which has done so; in fact they usually come to the party already armed with £100 fake PCNs 'one size fits all'!

bazster

Oh right, I see what you are getting at now. Still not sure the wording's that clear, but can't come up with anything different right now!

lcbandituk

so the bits highlighted in red, either want altering or scrubbing? I will check the creditor bit, but I am aware at the moment that parking eye mention britannic industries but the land is apparently owned by cornwall council? I am awaiting a reply from newquay council regarding an issue with said car park, I am also waiting for my friend to go down this sunday and measure the signage and lettering (fingers crossed he can make it this time and not have to work)

bazster

The bits in red (in my opinion, and it's only my opinion) want looking at. Remember, you can see the notice you have in your hand, we can't.

The bottom line is this: it is your appeal, and you need to be sure that (i) you understand everything you say and (ii) everything you say is true. Otherwise you are going to get spanked. This is the drawback with copying templates or cutting-and-pasting.

If you don't understand something, or you are not sure it is true, ask for help or remove it.

PasturesNew

I never go to Fistral Beach car park any more as I don't pay for parking as it's expensive (especially if you're driving around for 2-3 hours and parking in 4-5 car parks).

I was one of the "lucky ones" from a couple of years back, having just ignored their letters and they did finally go away. I did actually have a full (free) Parking Pass for there, car park was nearly empty and I forgot to display it, got out of the car, realised I might have forgotten, popped back to find a ticket.

Sites don't realise their loss of income from being car parks people like me avoid at all costs. I'd love to buy my chips there, as a treat, and eat them watching the waves ..... but won't.