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parking eye charge notice

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Comments

  • this is a nightmare spent 2 hrs writing this out tried posting it and its logged out ! help is there anyway i can get it
    Its telling me to go back and reload previous page
  • No way should it have taken 2 hours to do that

    Copy and paste is the way to go.
    Proud to be a member of the Anti Enforcement Hobbyist Gang.:D:T
  • yes fine if your great with pc i am not !
  • Get it all down on wordpad.
    Then paste on to the popla site.

    If it says the code is no longer valid email the appeal to rreeve@popla.org.uk
    Proud to be a member of the Anti Enforcement Hobbyist Gang.:D:T
  • Coupon-mad wrote: »
    You could use these sort of words - it's long but brings it around to contract law which is what POPLA look for......SNIP

    I have discovered that ParkingEye have a secret agreement with their client called a 'genuine customer exemption' ....

    This was something I discovered in my dealings with a retail park, although a minimum spend was not mentioned and we spent way above any quoted figure anyway.

    I voice recorded in about five shops and all but one mentioned a genuine customer exemption, and offered to use it even though we were quite a way past LBA stage.

    I think I shall go and try to find this recording. Shame it wasn't on video.
  • flopsy1973
    flopsy1973 Posts: 714 Forumite
    Part of the Furniture 500 Posts Name Dropper
    edited 26 February 2014 at 9:37PM
    As the registered keeper of car reg xxx I would like to appeal this notice on the following grounds:

    1 The Charge not a genuine pre-estimate of loss
    2. No standing to pursue charges in the courts nor to make contracts with drivers
    3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
    4. Signage incapable of being read in the dark - no contract with drives
    5. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs
    6. Unreasonable & Unfair Charge - a penalty that cannot be recovered
    7. PARKING EYE'S CONTRACT ALLOWS FOR 'GENUINE CUSTOMER EXEMPTION' BUT AS A HIDDEN TERM. BREACH OF UTCCR 1999 & CPUTRs 2008




    1. The Charge not a genuine pre-estimate of loss

    The £85 charge asked for, far exceeds the cost to the landowner who would have received £0.00 from any vehicles parked as the car park is free to use.
    In the appeal Parking Eye did not address this issue, and has not stated why they feel a £85 charge is an appropriate pre-estimate of loss.
    Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.
    I put Civil Enforcement to strict proof of the alleged loss including a detailed breakdown of how the amount of the "charge" was calculated.



    2. No standing to pursue charges in the courts nor to make contracts with drivers
    Parking Eye have no standing as they are an agent, not the landowner. They also have no BPA-compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.

    I put Civil Enforcement to strict proof of the above in the form of their unredacted contract. Even if a basic site agreement is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Parking Eye and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not another agent - and must comply with paragraph 7 of the BPA CoP and show that this contravention can result in this charge at this car park and that Parking Eye can form contracts with drivers in their own right. The whole contract is required to be produced, in order to ensure whether it is with the actual landowner, and see all terms.

    3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
    The Notice to Keeper is not compliant with POFA 2012, Schedule 4 due to these omissions:
    ''9(2)The notice must—
    (b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
    (c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
    (d)specify the total amount of those parking charges that are unpaid, as at a time which is—
    (i)specified in the notice; and
    (ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
    (e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
    (i)to pay the unpaid parking charges; or
    (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;
    (f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
    (i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
    (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;
    (h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''

    Where paragraph 9 requires certain wording, it is omitted - except a small amended sentence on the payment slip (which has been found in Council PATAS appeals, not to count as the 'PCN' because it is a separate section, designed to be removed). Also, as keeper I cannot be expected to guess the 'circumstances in which the requirement to pay...arose' because the charge is stated to be based on 'payment not made in accordance with terms displayed on signage'. This so-called outstanding 'payment' is not quantified and the signs do not support that contention (see point 4). There is no payment due for a car parked from 7pm for less than 2 hours and the signs also allow a 10 minutes grace period before charges arise. No fee was due so the NTK misstates the alleged contravention and fails to meet the strict requirements of POFA2012..

    POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. ''Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the many omissions of statutory wording, it was not properly given and so there is no keeper liability.

    4. Signage does not comply with BPA regulations - no contract with driver
    The sign at the entrance to the car park is positioned high up on a pole. The sign was not seen by the driver and would have been invisible in the dark, and the sign was far too high to even be picked out by car headlights.

    The BPA CoP at Appendix B sets out strict requirements for entrance signage, including "The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead" and "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. 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...''

    In addition, the terms & conditions are in particularly small font compared with the offer to park for 2 hours for free. The sign's wording is misleading and where there is an unclear or ambiguous contract term, the doctrine of contra proferentem - giving the benefit of any doubt in favour of the party upon whom the contract was foisted - applies. It is up to the company to ensure their terms are clear and unambiguous, otherwise any ambiguity must be interpreted in the favour of the consumer.


    5. ANPR clock/reliability/data handling/ICO rules on ANPR signs
    I did not see any signage indicating that ANPR cameras were in use:


    BPA CoP paragraph 21 'Automatic number plate recognition' (ANPR):
    ''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.''

    CEL fail to operate the system in a 'reasonable, consistent and transparent manner'. There is no signage to 'inform 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'. This camera farms the data from moving vehicles at the entrance & exit and is not there for 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any actual proof of a 'parking event' at all.

    6. Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered
    The terms that the Operator in this case are alleging gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. There is no contract between the Operator & motorist but even if POPLA believes there was likely to be a contract then it is unfair and not recoverable.

    This charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
    ‘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.’

    In the Unfair Terms in Consumer Contracts Regulations 1999:-
    ''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.''

    The Office of Fair Trading, Unfair Contract Terms Guidance:
    Group 18(a): Allowing the supplier to impose unfair financial burdens
    ''18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However... a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.''


    7.PARKING EYE'S CONTRACT ALLOWS FOR 'GENUINE CUSTOMER EXEMPTION' BUT AS A HIDDEN TERM. BREACH OF UTCCR 1999 & CPUTRs 2008
    I have receipts to prove i was using this retail park on the day in question which parking eye asked me to submit to them. these were then still disregarded by parking eye as they did not meet the discretionary criteria set out by the landowner in this case


    Yours faithfully

    hi

    what about this any comments ? not sure section 3 notice to keeper should be in there as there was no charge for this car park (2 free hrs)

    thanks again



  • Coupon-mad
    Coupon-mad Posts: 155,625 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 26 February 2014 at 11:54PM
    You have left loads of 'I put Civil Enforcement to strict proof' in there! Get rid!

    And no, the point #3 does not apply to a ParkingEye PCN (but it's irrelevant that there was no charge for this car park). So remove #3 and re-number.

    And in this bit:

    ''5. ANPR clock/reliability/data handling/ICO rules on ANPR signs
    I
    did not see any signage''


    You would have just ruined your careful efforts NOT to imply who was driving! No 'me myself or I' when talking about the signage or parking event.

    And you are going to include ALL the wording I gave you for this bit, yes, otherwise it's pointless:

    7.PARKING EYE'S CONTRACT ALLOWS FOR 'GENUINE CUSTOMER EXEMPTION' BUT AS A HIDDEN TERM. BREACH OF UTCCR 1999 & CPUTRs 2008


    So get rid of:

    ''I have receipts to prove i was using this retail park on the day in question which parking eye asked me to submit to them. these were then still disregarded by parking eye as they did not meet the discretionary criteria set'' out by the landowner in this case

    and copy & paste the wording I typed in post #38, right down to and including the word 'stipulated.' You can do it in ONE go, by left click held down, dragging from the last word upwards to highlight the words you want, and then right-click 'copy' then go to your document and click 'paste'. You don't TYPE it, I did that for you!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • hi coupon mad regarding your comments regarding inserting all of section 5 this contains a lot of info regarding that specific case camera timings ie 3mins over time obviously i shall not put that in.
    My case is different in being nearly 2 hours over time so do i copy what you have put regarding reliability and timings?
  • Coupon-mad
    Coupon-mad Posts: 155,625 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 27 February 2014 at 8:29PM
    I told you to insert ALL the words I wrote for your section 7 (not 5). The post above that I specifically wrote for you to use in post #38 (only I called it point 4 then). The stuff about the 'genuine customer exemption' right through to the word 'stipulated'...

    Come on, this is fairly simple. The only thing I said about section 5 was to get rid of 'I'! What do you think 'I didn't see' tells them about who was driving...?
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • hi the way i read it i thought you were referring to another point!
    please find below the draft below for your comments

    thanks




    As the registered keeper of car reg xxx I would like to appeal this notice on the following grounds:

    1 The Charge not a genuine pre-estimate of loss
    2. No standing to pursue charges in the courts nor to make contracts with drivers
    3. Signage incapable of being read in the dark - no contract with driver
    4. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs
    5. Unreasonable & Unfair Charge - a penalty that cannot be recovered
    6. PARKING EYE'S CONTRACT ALLOWS FOR 'GENUINE CUSTOMER EXEMPTION' BUT AS A HIDDEN TERM. BREACH OF UTCCR 1999 & CPUTRs 2008

    1. The Charge not a genuine pre-estimate of loss

    The £85 charge asked for, far exceeds the cost to the landowner who would have received £0.00 from any vehicles parked as the car park is free to use.
    In the appeal Parking Eye did not address this issue, and has not stated why they feel a £85 charge is an appropriate pre-estimate of loss.
    Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.
    I put Parking Eye to strict proof of the alleged loss including a detailed breakdown of how the amount of the "charge" was calculated.

    2. No standing to pursue charges in the courts nor to make contracts with drivers
    Parking Eye have no standing as they are an agent, not the landowner. They also have no BPA-compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.

    I put Parking Eye to strict proof of the above in the form of their unredacted contract. Even if a basic site agreement is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Parking Eye and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not another agent - and must comply with paragraph 7 of the BPA CoP and show that this contravention can result in this charge at this car park and that Parking Eye can form contracts with drivers in their own right. The whole contract is required to be produced, in order to ensure whether it is with the actual landowner, and see all terms.


    3. Signage does not comply with BPA regulations - no contract with driver
    The sign at the entrance to the car park is positioned high up on a pole. The sign was not seen by the driver and would have been invisible in the dark, and the sign was far too high to even be picked out by car headlights.

    The BPA CoP at Appendix B sets out strict requirements for entrance signage, including "The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead" and "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. 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...''

    In addition, the terms & conditions are in particularly small font compared with the offer to park for 2 hours for free. The sign's wording is misleading and where there is an unclear or ambiguous contract term, the doctrine of contra proferentem - giving the benefit of any doubt in favour of the party upon whom the contract was foisted - applies. It is up to the company to ensure their terms are clear and unambiguous, otherwise any ambiguity must be interpreted in the favour of the consumer.


    4. ANPR clock/reliability/data handling/ICO rules on ANPR signs
    The driver did not see any signage indicating that ANPR cameras were in use:

    BPA CoP paragraph 21 'Automatic number plate recognition' (ANPR):
    ''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.''

    Parking Eye fail to operate the system in a 'reasonable, consistent and transparent manner'. There is no signage to 'inform 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'. This camera farms the data from moving vehicles at the entrance & exit and is not there for 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any actual proof of a 'parking event' at all.

    5. Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered
    The terms that the Operator in this case are alleging gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. There is no contract between the Operator & motorist but even if POPLA believes there was likely to be a contract then it is unfair and not recoverable.

    This charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
    ‘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.’

    In the Unfair Terms in Consumer Contracts Regulations 1999:-
    ''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.''

    The Office of Fair Trading, Unfair Contract Terms Guidance:
    Group 18(a): Allowing the supplier to impose unfair financial burdens
    ''18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However... a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.''


    6.PARKING EYE'S CONTRACT ALLOWS FOR 'GENUINE CUSTOMER EXEMPTION' BUT AS A HIDDEN TERM. BREACH OF UTCCR 1999 & CPUTRs 2008
    I have discovered that ParkingEye have a secret agreement with their client called a 'genuine customer exemption' which I am now told (too late) the driver/passenger could have claimed at the outset, apparently if they had spent more than an undisclosed sum. But this Operator failed to make that contract term or 'discretionary criteria' known to customers even though it appears to be a core term of their operation here at this car park.

    Parking Eye are required to show POPLA their full contract and user manual/agreement to show POPLA the wording of this 'genuine customer exemption' term. The Operator must explain why this term & sum is not mentioned anywhere in the signage nor explained clearly and transparently in the Notice to Keeper, or indeed anywhere, despite ample opportunity. This is clearly a crucial core term to share with retail park customers at an early stage when the driver/passengers would know they needed to meet the undisclosed minimum spend and then show a receipt to claim their exemption as a shopper. This is a fundamental term and is a key feature which has directly led to this charge being applied - and yet neither I nor the driver knew about it.

    Parking Eye are taking unconscionable advantage of myself by failing to inform me or the driver about the exemption we could have claimed. Parking Eye must show POPLA how their secret 'exemption clause' meets the 'test of fairness' in contract law (see below). The Operator is required to explain what justification they think exists to fail to share this term with the party they hold liable, the very party upon whom the contract is foisted and the person who is facing the detriment of a charge.

    This is a 'wholly unreasonable' contract term and a 'misleading omission' which is in clear breach of the Unfair Terms in Consumer Contracts Regulations 1999 and Consumer Protection from Unfair Trading Regulations (CPUTR) 2008:

    CPUTR 2008 PART 2 PROHIBITIONS*
    Misleading omissions

    6.—(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
    (a)the commercial practice omits material information,
    (b)the commercial practice hides material information,
    and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

    "material information" means— the information which the average consumer needs, according to the context, to take an informed transactional decision.

    *CPUTRs prohibitions are expressly banned contract terms in the regulations - there is no justification if the 'prohibited' level of unfair terms is found to apply.


    Office of Fair Trading Guidance for the Unfair Terms in Consumer Contracts Regulations 1999
    'Test of fairness'
    A term is unfair if: Contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers. Regulation 5(1).
    Unfair terms are not enforceable against the consumer.

    'Good faith' means that {companies} must deal fairly and openly with consumers. Standard terms may be drafted to protect commercial needs but must also take account of the interests and rights of consumers by going no further than is necessary to protect those legitimate commercial interests.

    9.2 It is not 'hidden terms' themselves that are indicated to be unfair, but any term which binds the consumer to accept or comply with them – or, in legal jargon, 'incorporates' them 'by reference'. However, terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.
    9.3 We also object to terms which require consumers to accept that they are bound by the terms of other linked contracts...unless they are given an appropriate chance to read them.
    9.4 This is not to say that every detail of information about an agreement must be included in a single contract document...The overriding requirement is that consumers are effectively alerted – before committing themselves – to all contractual provisions that could significantly affect their legitimate interests.
    18.7.4 Suspicion of unfairness falls on any term giving to the supplier, or his agent, excessive power to decide whether the consumer ought to be subject to a penalty, obliged to make reparation of any kind, or deprived of any benefits under the contract.
    18.8.1 There is a clear risk of unfairness where terms put consumers at risk of incurring contractual penalties that are more severe than is necessary to protect the real interest of the supplier. This form of unfairness most obviously arises where a term provides for an excessive penalty...
    18.8.2 Where contract terms impose requirements that are not required at all by any legitimate interest of the supplier, or which go beyond anything needed to protect his legitimate interests, the source of unfairness is not the level of the penalty. Any penalty entailed by a wholly unreasonable term must be considered potentially disproportionate. Since breach of a contract term always involves some risk of a sanction being applied to the consumer, the term itself is the source of unfairness, and fairness can only be achieved by removing or amending it.
    18.8.3 The OFT therefore objects, on the grounds of disproportionate penal effect, to terms which impose obligations or restrictions that are or can be wholly unreasonable, or which give the supplier the power to make stipulations of that nature. The objection applies regardless of the level of penalty stipulated.








    Yours faithfully

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