Parking Eye PCN - Closed Retail Park

Coupon-mad

Bumping your own thread with a reply is best, if you have a question.

danny27

Thanks a lot coupon mad. I've adjusted it about and added in the points you suggested here it is

POPLA Verification Code:
Vehicle Registration:
Parking Company:
PCN Ref:
Car Park:
Alleged Contravention Date and Time:
Date of Notice:
Parking Charge Amount:

Dear POPLA assessor,

I'm the registered keeper of the vehicle above and I am appealing against the parking charge above, I believe I am not liable for the parking charge on the grounds stated below, I would ask that all points are taken into consideration.

1. Non genuine pre-estimate of loss
2. Signage
3. Flawed contract with landowner/Authority to issue PCN's
4. Unlawful Penalty Charge
5. Business Rates
6. ANPR Accuracy

1. Non genuine pre-estimate of loss - The Amount of (Amount) demanded by ParkingEye Ltd. is not a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre. As this is a free car park and the stores on site were closed at the time there can be no losses incurred from onsite parking charges or retail revenue. I request ParkingEye Ltd. to provide a full breakdown of how these costs are calculated, all these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the amount demanded of (Amount).

As in previous cases the parking company as included day to day running costs of the business (for example Wages, Uniforms, Signage erection, Installation of ANPR cameras, Office Costs, Maintenance Costs) these would of occurred had there been a breach or not and therefore may not be included in this pre-estimate of loss.

Given that ParkingEye Ltd. charge the same lump sum for a 15 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

No doubt ParkingEye Ltd. will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye Ltd. car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.'' My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

Furthermore, I attach a letter from Parking Eye in correspondence with another case, that admits that their estimate of cost in each case is actually £53, including operating costs, and this that the charge they are seeking to impose in my case has a considerable element of profit as well as operating costs incorporated. By their own admission, therefore, It can not, be a true pre-estimate of loss.

It would therefore follow that this charges are Punitive and have and element of profit included and are not allowed to be imposed by parking companies.

2. Signage - Following the receipt of the charge, I have personally visited the site in question. The signage at entrance of the car park has no lighting and doesn't have a reflective background, this makes it possible for drivers to enter the car park with out seeing the signs thus no contract can be formed between the driver and ParkingEye Ltd. The entrance sign is also situated on the passenger side of the road on a standard right hand UK car, this makes it difficult for the driver to see or read from inside the car regardless of which side of the road the car park is entered from. All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering especially at night when my vehicle was parked.

Under Appendix B Entrance signs of the BPA Code of Practice it states '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.'

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 the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

3. Flawed contract with Landowner/Authority to issue PCN's - ParkingEye Ltd. do not own this car park and are merely agents of the owner or legal occupier. In their notice and rejection letters ParkingEye Ltd. have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I put ParkingEye Ltd. to strict proof to POPLA that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. I demand that ParkingEye Ltd. produce to POPLA the contemporaneous and unredacted contract between the landowner and the ParkingEye Ltd.

In ParkingEye Ltd. v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

If ParkingEye produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that ParkingEye witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest ParkingEye don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.

The BPA code of practice contains the following:

7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges , through the courts if necessary.

4. Unlawful Penalty Charge - Since there is no demonstrable loss or damage yet a breach of contract as been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. ParkingEye Ltd. could state the letter as a invoice or request for monies, yet they choose to word it as a 'Charge Notice' in an attempt for it to be deemed as a official parking fine such as the ones issued by Police and local authorities.

5. Business Rates - As the car park is being used for the purpose of running a business by ParkingEye Ltd., which is entirely separate from any other business the car park services, and generates revenue and profit for ParkingEye Ltd., I do not believe that ParkingEye Ltd. has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.

I put ParkingEye Ltd. to strict proof that they have so registered the business they are operating at (Car Park Name) car park with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.

6. ANPR Accuracy - Under paragraph 21.3 of the BPA Code of Practice, it requires parking companies to make sure ANPR equipment is maintained and in correct working order. I require ParkingEye Ltd. to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important as the parking charge issued is founded entirety on 2 photos of my vehicle entering the car park and leaving the car park at specific times. It is vital that parking eye 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 recently in ParkingEye Ltd. 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 Ltd. 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 Ltd. to strict proof to the contrary.


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.

Yours Faithfully,

4consumerrights

Danny - your POPLA appeal is a very well worded and researched but I would recommend highlighting :

No contract between driver/inadequate signage as a heading and at start of explanation of signage issue.

Also if you want Parking Eye to jump through a few more hoops consider adding:

Proof of planning consent - for the one hour parking allowed and for the ANPR system - required evidence for the car park that council planning authorisations have not been contravened.

Coupon-mad

I attach a letter from Parking Eye in correspondence with another case, that admits that their estimate of cost in each case is actually £53,

As long as you have got that to attach, it looks fine.

Maybe add a bit more to the ANPR section just to cover the lack of transparency & ANPR signage issue? If so this is a tweaked version of something I added to a recent VCS POPLA appeal:


In addition, the BPA code of practice 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.''

ParkingEye fail to operate the system in a 'reasonable, consistent and transparent manner'. As ParkingEye place signs too high to see on arrival, 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 that as well as being unreliable, 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.





P.S. I also agree with 4consumerrights' comments above.

danny27

Right i have added in the points suggested -

POPLA Verification Code:
Vehicle Registration:
Parking Company:
PCN Ref:
Car Park:
Alleged Contravention Date and Time:
Date of Notice:
Parking Charge Amount:

Dear POPLA Assessor,

I'm the registered keeper of the vehicle above and I am appealing against the parking charge above, I believe I am not liable for the parking charge on the grounds stated below, I would ask that all points are taken into consideration.

1. Non genuine pre-estimate of loss
2. No contract between driver/Inadequate signage
3. Flawed contract with landowner/Authority to issue PCN's
4. Unlawful penalty charge
5. Business rates
6. ANPR accuracy
7. ANPR usage
8. Proof of planning consent for 1 hour parking allowed and ANPR system

1. Non genuine pre-estimate of loss - The Amount of (Amount) demanded by ParkingEye is not a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre. As this is a free car park and the stores on site were closed at the time there can be no losses incurred from onsite parking charges or retail revenue. I request ParkingEye to provide a full breakdown of how these costs are calculated, all these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the amount demanded of (Amount).

As in previous cases the parking company as included day to day running costs of the business (for example Wages, Uniforms, Signage erection, Installation of ANPR cameras, Office Costs, Maintenance Costs) these would of occurred had there been a breach or not and therefore may not be included in this pre-estimate of loss.

Given that ParkingEye charge the same lump sum for a 15 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

No doubt ParkingEye will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.'' My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

Furthermore, I attach a letter from ParkingEye in correspondence with another case, that admits that their estimate of cost in each case is actually £53, including operating costs, and this that the charge they are seeking to impose in my case has a considerable element of profit as well as operating costs incorporated. By their own admission, therefore, It can not, be a true pre-estimate of loss.

It would therefore follow that this charge is Punitive and has an element of profit included that are not allowed to be imposed by parking companies.

2. No contract between driver/Inadequate signage - Following the receipt of the charge, I have personally visited the site in question, and the signage at this car park especially at the entrance is inadequate for numerous reasons. The signage at entrance of the car park has no lighting and doesn't have a reflective background and, this makes it possible for drivers to enter the car park with out seeing the signs thus no contract can be formed between the driver and ParkingEye. The entrance sign is also situated on the passenger side of the road on a standard right hand UK car and is situated around 6-8ft high on a pole, this makes it difficult for drivers to see or read from inside the car regardless of which side of the road the car park is entered from. All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering especially at night when my vehicle was parked.

Under Appendix B Entrance signs of the BPA Code of Practice it states '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.'

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 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. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

3. Flawed contract with landowner/Authority to issue PCN's - ParkingEye do not own this car park and are merely agents of the landowner or legal occupier. In their notice and rejection letters ParkingEye have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I put ParkingEye to strict proof to POPLA that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. I demand ParkingEye produce to POPLA the contemporaneous and unredacted contract between the landowner and the ParkingEye.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

If ParkingEye produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that ParkingEye witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest ParkingEye don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.

The BPA code of practice contains the following:

7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges , through the courts if necessary.

4. Unlawful penalty charge - Since there is no demonstrable loss or damage yet a breach of contract as been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. ParkingEye could state the letter as a invoice or request for monies, yet they choose to word it as a 'Charge Notice' in an attempt for it to be deemed as a official parking fine such as the ones issued by Police and local authorities.

5. Business rates - As the car park is being used for the purpose of running a business by ParkingEye, which is entirely separate from any other business the car park services, and generates revenue and profit for ParkingEye, I do not believe that ParkingEye Ltd. has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.

I put ParkingEye Ltd. to strict proof that they have so registered the business they are operating at (Car Park Name) car park with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.

6. ANPR accuracy - Under paragraph 21.3 of the BPA Code of Practice, it requires parking companies to make sure ANPR equipment is maintained and in correct working order. I require ParkingEye to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important as the parking charge issued is founded entirety on 2 photos of my vehicle entering the car park and leaving the car park at specific times. It is vital that parking eye 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 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.

7. ANPR 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'

ParkingEye fail to operate the system in a 'reasonable, consistent and transparent manner'. As ParkingEye place signs too high to see on arrival, 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 that as well as being unreliable, 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.

8. Proof of planning consent for 1 hour parking allowed and ANPR system - I request ParkingEye provide proof that they have the necessary planning permissions from the local authorities to operate this car park a 1 hour car and for the installation of the ANPR cameras used on this site.


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.


Yours Faithfully,

i am a bit unsure on how to word the planning consent bit and what else i could add to this point to back it up so any help in this area would help me a deal

many thanks

The_Slithy_Tove

While I applaud the section in these POPLA appeals regarding business rates, I don't know what POPLA will make of them. I guess they will see this as not relevant to the appeal, as it does not effect any contract that may be in place. Good to leave it in, though, just so PE know we're watching them.

But what you must also do it contact the relevant local authority's rating department and enquire why it is that a profit making business is operating on zero-rated land, and what do they intend to do about it.

Coupon-mad

i am a bit unsure on how to word the planning consent bit and what else i could add to this point to back it up so any help in this area would help me a deal

I think you have worded it fine. Send it.

danny27

thanks coupon-mad for all your help i have had a slight re-jig of the planning permission bit and got it to this i will be sending Monday by the latest.

8. Proof of planning consent for 1 hour parking allowed and ANPR system - It as been known that some parking companies to not have the necessary planning permissions/consent from the local authorities for the parking limit time and installation of ANPR cameras. SoI put ParkingEye to strict proof to provide evidence that they have the necessary planning permissions/consent from the local authorities to operate this car park on a 1 hour time limit and for the installation of the ANPR cameras that are used on this site.

danny27

just a quick question are parking companies aloud to include the popla fee in their losses, im guessing not as they issue the charge before it even gets to popla, if someone could just confirm if i am right?

thanks

Coupon-mad

No they cannot include the POPLA fee as it's not allowed to be passed onto the motorist. PE don't include it, they send a load of rubbish business costs which POPLA knock back (read the POPLA decisions thread to learn about it). You will win.