Parking Eye PCN - Closed Retail Park

danny27

Sending it off tomoz should i send it online and by post aswell?

And put a note on the online one saying also sent by post with evidence attched

Umkomaas

danny27 wrote: »

Sending it off tomoz should i send it online and by post aswell?

And put a note on the online one saying also sent by post with evidence attched

Double insurance, yep, why not.

Get free proof of posting of your snail version from your PO.

danny27

Just thought i would update you all i received the verdict from my POPLA appeal today and it was allowed would just like to thank Guys Dad, Coupon-Mad any anybody else who as helped me.

from the sound of it parking eye didn't put up much of fight haha, the letter says:

Reasons for the Assessor’s Determination

It is the Appellant’s case that the parking charge notice was issued
incorrectly.

The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.

Accordingly I have no option but to allow the appeal.

Chris Adamson
Assessor

for anyone that would like to use my appeal to help them in anyway feel free here is the final copy i sent off

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

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 £XX.XX 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 exact amount demanded of £XX.XX

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. I am also aware that ParkingEye may not include the POPLA fee in a 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 a Penalty, 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 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 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 - It as been known that some parking companies to not have the necessary planning permissions/consent from the local authorities for the parking time limit 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.


This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if ParkingEye fail to address and provide the necessary evidence as requested in the points highlighted above.


Yours Faithfully,

4consumerrights

Well done Danny - PE are either chickening out or are re-grouping.

System

Is this any better or is it too much?

Please feel free to mention any changes, mistakes etc.
Thanks




PPC address My Address

Date
Car Reg : ……………….
Location/time: : ……………
Date of PCN Issue:
Issue 1- Parking Charge, (date) - Not received/ wrong address .
Issue 2, Notice to Keeper-Owner details provided/ driver details unknown (date).
PCN Number : ……………….

POPLA Verification Code: …………………

Dear Sir/Madam,

I write this letter as the Registered Keeper in order to appeal a Parking Charge Notice (PCN) issued on (date) (letter dated (date), RE: Notice to Keeper) for alleged “breach of advertised terms and conditions within ,,, ….. store at …..Retail Park, ….. St, …. Post code.
I have appealed this PCN directly with PPC who have unfortunately decided to uphold the charge. (Please see enclosed letter dated (date). I therefore appeal to your organisation for careful consideration and objective assessment.
I dispute the PCN on the following grounds:

1. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS.

2. CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES.

3. UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE.

4. NOTICE TO KEEPER NOT COMPLIANT WITH THE PROTECTION OF FREEDOMS ACT 2012.

5. UNLAWFUL PENALTY CHARGE.

6. UNREASONABLE.


1) NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS.
The parking charge of £100 sought by PPC is a penalty and not a pre-estimate of loss. PPC state in a letter to Keeper (date), “their parking charges are justified on the bases that not only do they amount to a genuine pre-estimate of loss but are likely to amount to liquidation damages” – which can only mean compensation agreed in advance. However the parking charge must be a genuine pre-estimate of loss therefore the parking charge is punitive and an unenforceable penalty charge.
The demand for a payment of £100 has no relationship to the loss suffered by the Landowner. The car park has no parking charge levies; the car park is “free”. In addition, the store closed at 7.30pm and it was a camera that witnessed the driver exiting the car park and not an attendant, as there was no attendant available anywhere on site, therefore there was no physical damage caused and there can’t have been a loss.

2) CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES.
PPC do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Parking Charge Notice to Keeper and in the rejection letter, PPC have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land.
May I also politely request that POPLA check whether PPC have indeed provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I suggest that any contract is not compliant with the requirements set out in the BPA Code of Practice.
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 the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of ‘Private Parking Charges’. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages, they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

3) UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE.
Due to the high position, 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, and no notices at all is placed on or positioned near the entrance or exist to the store.

I contend that the signs and any core parking terms PPC are relying upon were too small for any driver to see, read or understand. I challenge that the signs on this land (wording, position, clarity) 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 and Waltham Forest v Vine [CCRTF 98/1290/B2]).

In addition, the BPA code of practice contains the following:
''21 Automatic number plate recognition (ANPR)
PPC have failed to show me any evidence that the cameras in the car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and politely ask 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. Letters ‘RE Notice to Keeper’, ‘FINAL REMINDER’ and ‘Charge Notice’ do not show any image what so ever of the vehicle registration plate actually placed on the vehicle when entering the car park therefore it could be any vehicle. Although the image shown on the letters do clearly show the number plate actually placed on the vehicle when exiting the car park. This lack of clarity raises the question did the incident take place or is there an ANPR error involved?
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.''
PPC fail to operate the system in a reasonable, consistent and transparent manner. As PPC do not place enough signs and place signs too high to see on arrival so there is no opportunity for drivers to safely notice signs 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' and unreasonably collecting data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with actual parking spaces, nor any parking event at all.

4) NOTICE TO KEEPER - NOT PROPERLY GIVEN UNDER POFA 2012

The Notice to Keeper letter I received omits the required information if it were to establish 'keeper liability' under the POFA 2012. PPC have omitted required wording from paragraph 9, Schedule 4, of POFA 2012, namely:
''9(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1) (b) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must—
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''
In this case, the Notice to Keeper has not been correctly 'given' under POFA2012 and due to the omission of Part 2 (ii), (ii), (g) is nullity as the driver has not been identified for this parking event, PPC do not have the right party for their alleged 'contract/breach' since they have failed to establish keeper liability.
Also it omits (g) inform the keeper of any discount offered for prompt payment Please see the enclosed letter ‘RE: Notice to Keeper ‘date) and the ‘FINAL REMINDER’ (date)’ where at no point did PPC inform the registered keeper of any discount for prompt payment in either of its ‘ Notice to Keeper’ or ‘FINAL REMINDER’- the latter I can only presume is meant for the registered keeper as it does not state the title ‘RE Notice to Keeper FINAL REMINDER’
Please see reply/appeal letter to PPC (date), in response to ‘PPC ‘RE: Notice to Keeper (date)’. This letter informs how the registered keeper could not assist in providing ‘driver details’ but keeper did provide ‘owner details,’ to assist PPC in identifying the driver, however PPC did not even attempt to contact the owner to try and gain driver details but pursued the registered keeper instead.

5) UNREASONABLE

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”


SUMMARY

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, POFA 2012 and also fails to comply with basic contract law.

Yours Faithfully

Mr/Mrs……………………………………………………..