Another Parking eye one

Dumbledore13

Nice one. Thanks for all the help!
I will put up my revised appeal in a bit.

Dumbledore13

Quick question though. Should I be appealing as the registered keeper or as the driver?

Custard_Pie

If you are the RK and received the letter, then still reply as the RK regardless if you were driving or not. Refer to the driver as the third person.

There is no benefit at this point in identifying the driver.

Dumbledore13

So here's the new version.

Tough not to copy too much of what's been suggested but had to just take coupon mads suggested paragraph as I couldn't think of any other way to word it!

Again, all comments appreciated!




Parking appeal

Reference Number: ................

As the registered keeper of the vehicle ............... , I dispute the charge Parking Eye have issued me with.


NO CONTRACT MADE WITH THE DRIVER

I believe there was no contract made between the driver and Parking Eye. The driver did not see any information to suggest that they were entering a contract with Parking Eye.

For a contract to be made, parties must agree terms and and as this did not happen, no contract was formed. If no contract was formed, then the most the driver can be accused of is civil trespass and so the driver would only be liable to pay damages. As there was no damage done to the car park, there was no loss to Parking Eye.


NO LEGAL RIGHT IN LAND - CONTRACT WITH LANDOWNER

I don't believe that Parking Eye have any legal right in the land. This means they do not have the authority to offer parking spaces or to imply a contract has been made to anyone who uses that land. They have no legal right to accuse people of trespass or to demand payment for any 'loss'. If Parking Eye do have any ownership in the land, I would ask them to present this evidence to POPLA.

I believe there is no contract with the landowner that allows them to impose such punitive charges and so have no authority to issue "Parking Charge Notices" like the one I received. If there is, I would ask that Parking Eye provide evidence of the contract with the landowner that allows them to do so. If a contract is produced that mentions parking charge notices, lack of ownership in the land form Parking Eye means this contract is purely between Parking Eye as the agent and the landowner and cannot impact on a third party.


PUNITIVE/UNREASONABLE CHARGE - NO GENUINE PRE-ESTIMATE OF LOSS

The BPA Code of Practice states that "If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer". Parking Eye have failed to provide any genuine pre-estimate of loss. Operators cannot include their day-to-day operational running costs as loss (i.e maintenance of signage, employment of staff etc).

In the next paragraph of the Code it states that "If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable" The charge from Parking Eye is punitive as it is vastly disproportionate to any supposed contract breach or act of trespass.


BREACH OF EQUALITY ACT 2010, NO 'REASONABLE ADJUSTMENT' OF TIME

Firstly, POPLA please note this is a legal point which renders Parking Eye's contract terms legally unenforceable; this is not mitigation. This section of my appeal also makes the point that Parking Eye know about this particular issue already and cannot lawfully 'pick and choose' at which sites they bother with disability law, or not.

At the time of the parking incident, the driver was recovering from surgery relating to a long-term medical condition which continued to affect their day-to-day living. As such, under the Equality Act 2010 (EA) they met the 'definition of disability' and were therefore
entitled to longer amount of time to park and shop than able-bodied visitors.

Parking Eye and their client have a legal duty to comply with the EA and make 'reasonable adjustments' for customers with protected characteristics such as the driver in this instance (with no Blue Badge needed in law, not on private land). Quite simply, an arbitrary time limit with no extension for those who need it by virtue of their 'protected characteristics' is discriminatory.

Parking Eye cannot circumvent the EA. And Parking Eye are aware of this fact because in some car parks they allow double time for customers who register at the store customer service desk. This leaflet from Parking Eye at Leyland Aldi proves that Parking Eye do sometimes consider disability law but only at some car park sites (see attachment). **I am going to attach the picture with my appeal**

So Parking Eye have breached the EA at this particular car park site, on this occasion; they have no cause of action and no enforceable contract whatsoever. The EA makes it clear that contractual terms which breach the Act (i.e. in this case, fail to make reasonable adjustments) are a nullity:

EQUALITY ACT 2010
Unenforceable terms
142(1) A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.

144(1) A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act.



Due to the evidence I have outlined above, I believe Parking Eye should be ordered to cancel the charge.

Guys_Dad

"The BPA Code of Practice states that "If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer". Parking Eye have failed to provide any genuine pre-estimate of loss. Operators cannot include their day-to-day operational running costs as loss (i.e maintenance of signage, employment of staff etc)"

Add " I require Parking Eye to provide POPLA with how their charges are composed and remind them that any charge costs must relate directly to the loss they incurred by the vehicle being there at that time as compared with if it had been on my drive instead."


If a contract is produced that mentions parking charge notices, lack of ownership in the land form Parking Eye means this contract is purely between Parking Eye as the agent and the landowner and cannot impact on a third party. from?

I don't actually understand this paragraph.

Dumbledore13

Cheers for that, is that the only addition? Would it stand a chance of winning now?


If a contract is produced that mentions parking charge notices, lack of ownership in the land form Parking Eye means this contract is purely between Parking Eye as the agent and the landowner and cannot impact on a third party. from?

I don't actually understand this paragraph.[/QUOTE]


Yeah, I meant from. It means that the contract relating to parking charges, should there be one, is between PE and the landowner, not a contract between PE and the people using the car park as no contract has bee agreed between PE and the user.

Coupon-mad

By replacing your other paragraph (which had a bit about Equality Act and something about the signs) you have now missed any paragraph about unclear entrance and other signage and another one about the reliability & maintenance of their ANPR cameras. Always a no-brainer to have those paragraphs as it forces PE to produce more (flawed!) evidence - and at their expense in postage & man hours. Including such paragraphs is 'insurance' because POPLA may not agree with your other points (one day a PPC will jump thru those hoops about 'loss' etc.). But then they will hopefully lose anyway on signage or ANPR rules not being proven to be compliant, as long as every OP includes those points too.

You need wording about unclear signage like in the example I quoted which showed you the sort of POPLA appeal I usually write, the one with headings. You can copy the signage and ANPR paragraphs from the linked example I gave you, verbatim if you like, if applicable to your case (and it's not the disabled bay signs you'd be criticising anyway, it's the bog-standard entrance signs and others dotted around).

And I have just noticed from your OP that your surgery was on your back so it was clearly a mobility issue. So I would add that detail to this paragraph as shown:

''At the time of the parking incident, the driver was recovering from surgery relating to a long-term medical condition which continued to affect their day-to-day living. As such, under the Equality Act 2010 (EA) they met the 'definition of disability' and were therefore entitled to longer amount of time to park and shop than able-bodied visitors. The operation was on the driver's back; a recent surgery and an ongoing and painful issue at the time, so there was undoubtedly a 'mobility need' for extra parking/shopping time. The Operator and its client have failed in their legal duty under the EA's 'reasonable adjustment' provisions to put in place a (proactive, not reactive) system to offer up front, extra time allowances at the time of parking, to account for customers with such needs.''

I will amend the draft I previously wrote to add that bit and to make it in the third person, about 'the driver' as I see you correctly did in your version. And I will now bookmark it for future cases for other newbies.

Dumbledore13

Ok, so here's that last bit with your amendments. I used the signage points from my original post.




BREACH OF EQUALITY ACT 2010, NO 'REASONABLE ADJUSTMENT' OF TIME

Firstly, POPLA please note this is a legal point which renders Parking Eye's contract terms legally unenforceable; this is not mitigation. This section of my appeal also makes the point that Parking Eye know about this particular issue already and cannot lawfully 'pick and choose' at which sites they bother with disability law, or not.

At the time of the parking incident, the driver was recovering from surgery relating to a long-term medical condition which continued to affect their day-to-day living. As such, under the Equality Act 2010 (EA) they met the 'definition of disability' and were therefore
entitled to longer amount of time to park and shop than able-bodied visitors. The operation was on the driver's back; a recent surgery and an ongoing and painful issue at the time, so there was undoubtedly a 'mobility need' for extra parking/shopping time. The Operator and its client have failed in their legal duty under the EA's 'reasonable adjustment' provisions to put in place a (proactive, not reactive) system to offer up front, extra time allowances at the time of parking, to account for customers with such needs.

Parking Eye and their client have a legal duty to comply with the EA and make 'reasonable adjustments' for customers with protected characteristics such as the driver in this instance (with no Blue Badge needed in law, not on private land). Quite simply, an arbitrary time limit with no extension for those who need it by virtue of their 'protected characteristics' is discriminatory.

Parking Eye cannot circumvent the EA. And Parking Eye are aware of this fact because in some car parks they allow double time for customers who register at the store customer service desk. This leaflet from Parking Eye at Leyland Aldi proves that Parking Eye do sometimes consider disability law but only at some car park sites (see attachment).

So Parking Eye have breached the EA at this particular car park site, on this occasion; they have no cause of action and no enforceable contract whatsoever. The EA makes it clear that contractual terms which breach the Act (i.e. in this case, fail to make reasonable adjustments) are a nullity:

EQUALITY ACT 2010
Unenforceable terms
142(1) A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.

144(1) A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act.

Parking Eye have also failed to follow the BPA's Code of Practice when dealing with disabled people. BPA state in section 18.9 of their Code "so that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle". Although it suggests this should be located by the disable parking bays, it should not be limited to this as not all disabled people can park there. As the driver could not park in the disabled bays, the only sign that could be seen that day was the ill-placed sign at the entrance. The entrance comes off a busy road and with many other motorists entering the car park behind you, there is no way to read the whole terms and conditions of parking without a) causing a dangerous traffic jam behind you or b) leaving the car to read it, the latter failing in BPA's Code of Practice. The driver was therefore unaware that they had entered any 'contract' and as such, could not have breached any 'contract'.


Due to the evidence I have outlined above, I believe Parking Eye should be ordered to cancel the charge.

Coupon-mad

No, not that point from your original post because that talks about irrelevant signs at the disabled bays (you weren't parked there). And it doesn't cover ANPR section of the BPA CoP.

IMHO you need two extra additional paragraphs similar to the linked thread examples already given, which specifically talk about entrance signs and the BPA rules on those signs. It's the entrance signs that have a whole dedicated Appendix in the BPA CoP, and which MUST be prominent enough to ensure a driver cannot fail to read and understand all the terms BEFORE driving in and parking (i.e. at the point before any contract can have been alleged to have been formed).

And separately, IMHO you need the 'ANPR' paragraph you will see on the example threads too. Everyone uses that against PE and I haven't seen how they rebut it, if they do (but as all car parks are different it causes them a heck of a lot of work to prove compliance at that time and at that place!).

Dumbledore13

Coupon-mad wrote: »

No, not that point from your original post because that talks about irrelevant signs at the disabled bays (you weren't parked there). And it doesn't cover ANPR section of the BPA CoP.

IMHO you need two extra additional paragraphs similar to the linked thread examples already given, which specifically talk about entrance signs and the BPA rules on those signs. It's the entrance signs that have a whole dedicated Appendix in the BPA CoP, and which MUST be prominent enough to ensure a driver cannot fail to read and understand all the terms BEFORE driving in and parking (i.e. at the point before any contract can have been alleged to have been formed).

And separately, IMHO you need the 'ANPR' paragraph you will see on the example threads too. Everyone uses that against PE and I haven't seen how they rebut it, if they do (but as all car parks are different it causes them a heck of a lot of work to prove compliance at that time and at that place!).

How about this to add in then?



UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE

I do not believe that the entrance sign to the car park had enough legible information on it so that the driver could make an informed decision about any 'contract' that they may or may not wish to enter. The entrance sign must display full terms of entry and be large and prominent enough that the driver could not fail to read and understand before entering the car park. The entrance sign at this car park is located just off of a busy main road and is within the car park itself. The information was in a font which was too small and being off of a busy main road, the driver would not have had enough time to take in and read all of the terms had they had seen the sign at all upon entry. I do not believe the sign complies with the BPA's Code of Practice as it fails to inform the driver sufficiently of the terms and any subsequent consequences of breach. 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.


USE OF ANPR and DATA COLLATION

I further contend that The Operator has 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 them to provide documented compliance to this section of the Code in its entirety.
This evidence must show documentary proof of contemporaneous manual checks, maintenance, calibration and full compliance with section 21 of the Code, in its evidence.

I also challenge The Operator to show that DPA registration (data collecting CCTV) is also complaint with legal and BPA requirements and demand that they demonstrate adherence.