Parking eye fistral beach

lcbandituk

still waiting for pics n measurements but its getting a bit close for my liking now to be leaving the appeal til the last min, I know the appeal isn't just about signage but feel I may need a bit more help in constructing this letter so I don't bomb out!

Newquay council seem to be ignoring my request for a date when the signage was changed by Parking Eye which they say they did in a letter to the council that has been published.

If I manage to get pics and measurements then my letter would be constructed differently anyway, so I have to wait until Sunday at least to see if my friend has got them!

Coupon-mad

If you miss the 28 days then POPLA will throw the entire appeal out, no second chance.

Please check when the POPLA code was generated, from this explanation:

http://forums.pepipoo.com/index.php?showtopic=77510&st=80

Post #84 by Jack155 helps to to work out the date in June when your POPLA clock started ticking...

Also just send it soon and add to it a week later if you have to! As long as you send any extra evidence separately to the PPC as well as to POPLA.

lcbandituk

Ok reading the parking notice the part of the creditor is worded like this
The parking charge is now payable to parking eye ltd ( the creditor)

The date the letter was sent was 21 June says we have 28 days to appeal from that date which gives til the 19th July

lcbandituk

Would it be easier if I could find a way to put the original notice to keeper on here? Obviously blanking certain info out

Guys_Dad

Get your appeal in NOW. You can add to it later.

From the POPLA Web site

You should try and submit everything at the same time as you appeal, whether online or by post. If you do send anything separately, it must be before the decision is made.

They are scheduling appeals sent in now for September.

Coupon-mad

lcbandituk wrote: »

Ok reading the parking notice the part of the creditor is worded like this
The parking charge is now payable to parking eye ltd ( the creditor)

The date the letter was sent was 21 June says we have 28 days to appeal from that date which gives til the 19th July

We know, that's why you can't use that paragraph. It is up to you not just to use paragraphs that make no sense in your own case and you have the ticket there, we don't (but we know they altered their wording in May). Just get it finished and sent; make sure that it fits in the POPLA online appeal box completely, if not attach it separately and copy your own email addy in.

If you miss the 28 days then POPLA will throw the entire appeal out, no second chance.

lcbandituk

hi all this is my final draft, does it seem ok to you all?

I have checked and double checked the parking notice and everything in this appeal matches the parking notice

When I get photos and measurements I will forward these to popla too.


thanks


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 positioned 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..

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.

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: "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.

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

That's good. The font may need a tweak as some is in italics where it needn't be (like the paragraph added by bazster).

At the beginning I think I would add something less generic (so it's not copied from ones they have seen before) about the signs! So you could change that bit about signs to something longer and stronger. As it wasn't a free car park, the lack of clear signs is a very important point to hit home:


' I am the registered keeper of the above car and was not driving nor present but the driver did not see any clear signs on entry or near the car which would have communicated to a seated driver that the car park is pay and display and, it seems, a 24 hour one. Parking Eye have a duty - if their business model is to rely on contract law - to make the terms so clear that they cannot be missed, especially since in this beachside car park visitors will very often park up to watch the waves and enjoy the evening sea air from the comfort of the car. Therefore it is not an appropriate car park (as I believe is the case from my research for this appeal) to have merely a few small signs and no large sign with full terms at driver's window height. Any terms displayed on ticket machines - never seen by any driver who stays in the car - do not alter the contract which can only be offered by full terms & conditions displayed prominently at the entrance.

Because the signs fail to properly inform drivers of the full terms & conditions at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would 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 Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park and any consequences for breach, as was found in a comparable camera-reliant car park in the case of Excel Parking Services Ltd v Martin Cutts, 2011.

The 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 BPA Code of Practice states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.

And the BPA Code of Practice re signage 'Contrast and illumination':
There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision.”

I believe the signs and any core parking terms Parking Eye are relying upon were unclear in all respects. They need to show POPLA their evidence and signage map/photos which they might contend meet all the requirements I have listed above.

In addition, to suggest a breach of contract, Parking Eye needs to prove that the driver actually saw, read and accepted the terms, which they cannot do as it is clearly untrue. It seems that I and the POPLA adjudicator are being 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, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility. The truth is that the driver did not see, understand nor accept the alleged terms. Parking Eye may claim that generic signage is displayed around the car parkbut this does not meet the BPA Code of Practice rules nor the requirements for consideration when forming an alleged contract. To comply with contract law and the BPA Code of Practice, I say that Parking Eye need clear signs with full terms and a means to make payment (i.e. a machine) specifically at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here. '





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Need to get rid of 'the Equality Act 2010' as it's not relevant to you.


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And you could add this bit to your quotes from the UTCCR 1999:

''Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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."


***********************

And if you want even more, this example has a point yours hasn't, under the heading 'NO EVIDENCE OF PARKING TIME OR SUFFICIENT DETAIL OF CONTRAVENTION' in post '#2:

https://forums.moneysavingexpert.com/discussion/4695227

...and it has even more legal stuff about what proves this is a penalty...don't repeat the UTCCR stuff but there's more there if you want it!




If you add it all then make sure you don't try to fit it in the online POPLA appeal box as text as it won't fit. You'd have to attach it as a PDF I think or post it as an attachment if you've got a hard copy POPLA appeal form.

lcbandituk

POPLA appeal re Parking Eye ticket number xxxxxxxxxx


I am the registered keeper of the above car and was not driving nor present but the driver did not see any clear signs on entry or near the car which would have communicated to a seated driver that the car park is pay and display and, it seems, a 24 hour one. Parking Eye have a duty - if their business model is to rely on contract law - to make the terms so clear that they cannot be missed, especially since in this beachside car park visitors will very often park up to watch the waves and enjoy the evening sea air from the comfort of the car. Therefore it is not an appropriate car park (as I believe is the case from my research for this appeal) to have merely a few small signs and no large sign with full terms at driver's window height. Any terms displayed on ticket machines - never seen by any driver who stays in the car - do not alter the contract which can only be offered by full terms & conditions displayed prominently at the entrance.

Because the signs fail to properly inform drivers of the full terms & conditions at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would 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 Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must have taken to have known of it and agreed with it.”

I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park and any consequences for breach, as was found in a comparable camera-reliant car park in the case of Excel Parking Services Ltd v Martin Cutts, 2011.
The 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 BPA code of Code of Practice states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”


And the BPA Code of Practice re signage 'Contrast and illumination':
There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision.
I believe the signs and any core parking terms Parking Eye are relying upon were unclear in all respects. They need to show POPLA their evidence and signage map/photos which they might contend meet all the requirements I have listed above.


In addition, to suggest a breach of contract, Parking Eye needs to prove that the driver actually saw, read and accepted the terms, which they cannot do as it is clearly untrue. It seems that I and the POPLA adjudicator are being 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, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly, is perverse and beyond credibility. The truth is that the driver did not see, understand nor accept the alleged terms. Parking Eye may claim that generic signage is displayed around the car park but this does not meet the BPA Code of Practice rules nor the requirements for consideration when forming an alleged contract. To comply with contract law and the BPA Code of Practice, I say that Parking Eye need clear signs with full terms and a means to make payment (i.e. a machine) specifically at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here

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.
''Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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."

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 and basic contract law.


NO EVIDENCE OF PARKING TIME OR SUFFICIENT DETAIL OF CONTRAVENTION
A registered keeper like myself cannot make an informed decision based on a couple of photos of a car driving in and out of the entrance area of a car park at different times and no clear explanation of the alleged contravention.
The Operator is relying simply on pictures taken of a vehicle at first arrival and then when leaving. These pictures show no evidence at all of actual parking time or where the car was after driving in, whether it stayed in the car park or left and then returned within the recorded timescale.

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: "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.

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.



is this ok? really appreciate all the help

lcbandituk

just for info the font won't be like that in the appeal just this ruddy laptop I'm using, it's been a total nightmare!! lol