Parking charge at Two Saints Car Park in Ormskirk

emzy789

Hi there I have received a Parking Charge Notice from Parking Eye for overstaying the 1 hour free parking limit by 11 minutes on a Sunday

I appealed to Parking Eye on the grounds that parking charges are applicable Monday - Saturday and sent a copy of the information taken from the local council website which states this and includes this car park (even though it is not a council car park).

As I was aware that parking charges are only applied Monday - Saturday, I did not purchase a ticket to park.

Parking Eye replied stating my appeal has been unsuccessful and sent me an appeal form to appeal to POPLA. I am asking for some guidance on the appeal letter before I send it to POPLA. So far I have this:

PCN No – XXXXXXXXXXX

POPLA Ref: XXXXXXX
Issued – XXXXXX
Reg – XXXXX

POPLA
PO BOX 70748
London
EC1P 1SN

DATE


Dear Sirs

I am the registered keeper of vehicle registration number: XXXXX and I contend that I am not liable for the parking charge. I wish to appeal against the PCN notice on the following grounds

1) The driver entered the car park at XX:XX in the evening. The car parking notices are poorly lit and the notice at the entrance to the car park does not comply with BPA regulations.

There is a small sign as you enter which is above eye level when your in a car and if you go 50 yards there is another sign with a disabled bay in front of it, any form of motibility vehicle in front of it and it is out of site. The only only other signage is the occasional small sign above eye level!
2) The Signage does not comply with BPA regulations specifically regarding the data policy regarding ANPR technology used in this car park.

3) The charge is a penalty and not a genuine pre-estimate of loss'. The £100 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 £100 charge is an appropriate pre-estimate of loss.


For this charge to be justified a full breakdown of the costs Parking Eye has suffered as a result of the car being parked at the car park is required and should add up to £100. 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.

4) Proprietary Interest
The driver does not believe that Parking Eye has demonstrated a proprietary interest in the land, because they have no legal possession which would give Parking Eye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers.

In addition, Parking eye's lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge
the driver believes there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Parking eye. The driver expects Parking Eye to prove that they are not in breach of section 7.1 of the BPA code.

I believe there is no contract with the landowner/occupier that entitles them to levy these charges and to pursue them in the courts in their own name as creditor. Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant. Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.''

Yours Faithfully





HELP WOULD BE GREATLY APPRECIATED THANK YOU IN ADVANCE!

Coupon-mad

I appealed to Parking Eye on the grounds that parking charges are applicable Monday - Saturday and sent a copy of the information taken from the local council website which states this and includes this car park (even though it is not a council car park).

I got your pm, emzy, and welcome to MSE Forums!

Any Council CPZ restrictions are not applicable to a private car park (or any car park!) so that was a mistake on your part but we are glad you have come here in time. A Council CPZ only relates to the single yellows on street within the zone.

I would always add more to a PE appeal, so try copying some of this one I wrote for someone about a similar postal notice but from MET, who threw in the towel in days:

https://forums.moneysavingexpert.com/discussion/4856810

Post #15. It even attaches a ParkingEye case lost in court, to be a persuasive argument.

Guys_Dad

Why have you not included the wording of the signs which lead you to believe that parking on Sundays were unrestricted.

That is a valid point that should be made much more of under the signage point.

emzy789

Any Council CPZ restrictions are not applicable to a private car park (or any car park!) so that was a mistake on your part but we are glad you have come here in time. A Council CPZ only relates to the single yellows on street within the zone.

The information on the website was a breakdown of all parking charges at car parks (as opposed to road parking) in the area and stated they applied Monday - Saturday. This car park was included on the website (Even though not council) I have a print off of this from December (When the ticket was issued). This particular car park has since been removed from the same web page on the council website.

I will tweak the letter you refer to Coupon and paste it up to see what you think.

Coupon-mad

Naughty Council to include such misinformation!

emzy789

POPLA CODE: XXXXXXXX

As the registered keeper of the vehicle, registration number XXXXXX, I wish to appeal against the parking charge issued by Parking Eye car park management.

My appeal is based on the following grounds.

1. No breach of contract and no genuine pre-estimate of loss.

2. Contract with the landowner – no locus standi.

3. Notice to Keeper not properly given under POFA 2012 – no keeper liability.

4. Lack of photographic evidence and unreliable, unsynchronised and non-compliant ANPR system.

5. Unclear and non-compliant signage, forming no contract with drivers.

To expand on these points:

1. No breach of contract and no genuine pre-estimate of loss
Accordingly, the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.

I require Parking Eye to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Parking Eye cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner does not impose a parking fee for the area in question, there is no loss to Parking Eye nor the landowner. The Office of Fair Trading has stated 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.''


2. Contract with landowner - no locus standi
Parking Eye does not own nor has any interest or assignment of title of the land in question. As such, I do not believe that Parking Eye has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Parking Eye to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the un-redacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Parking Eye and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 Parking Eye v Clarke 19th December 2013 (Transcript linked):

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. Parking Eye cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.


3. Notice to Keeper not properly given under POFA 2012 – no keeper liability.
The Notice I have received, as the registered owner of the vehicle, makes it clear that Parking Eye is relying on Schedule 4 of the Protection of Freedoms Act 2012. Parking Eye failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be Parking Eye or their client, their debt collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is.....”.

The wording of Paragraph 9(2) (h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but “identified”. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, Parking Eye has failed to establish keeper liability. In this case, the NTK has not been correctly 'given' under POFA2012 and so it is a nullity. In a previous ruling, POPLA Assessor Matthew Shaw stated that the validity of a Notice to Keeper is 'fundamental to establishing liability' for a parking charge, stating: 'where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.'


4. Lack of photographic evidence and unreliable, unsynchronised, non-compliant ANPR system.
I call into question the reliability and compliance of the ANPR system because Parking Eye is relying on two pictures of a vehicle. I require the Operator to present records which prove:

- the Manufacturers' stated % reliability of the exact ANPR system used here.

- the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.

The ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which 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.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.


5. Unclear and non-compliant signage, forming no contract with drivers.
Due to their high position and the barely legible size of the small print, the signs in this car park are very hard to read. I contend that the signs and any core parking terms that Parking Eye are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed.


COMMENTS PLEASE.....

Coupon-mad

That's fine except remove this because PE do use the word 'creditor' in their PCNs:


3. Notice to Keeper not properly given under POFA 2012 – no keeper liability.
The Notice I have received, as the registered owner of the vehicle, makes it clear that Parking Eye is relying on Schedule 4 of the Protection of Freedoms Act 2012. Parking Eye failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be Parking Eye or their client, their debt collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is.....”.

The wording of Paragraph 9(2) (h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but “identified”. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, Parking Eye has failed to establish keeper liability. In this case, the NTK has not been correctly 'given' under POFA2012 and so it is a nullity. In a previous ruling, POPLA Assessor Matthew Shaw stated that the validity of a Notice to Keeper is 'fundamental to establishing liability' for a parking charge, stating: 'where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.'


Also you say this was at night so you can add to the signage paragraph (which will now be point #4) that the car park was pitch black (or dark, or dusk?) as is seen in the photos and as such the entrance was certainly not well lit as PE's own evidence shows. As such it cannot be certain that the driver 'must have' seen a several feet high up, unlit sign which would not have been lit by headlights.

emzy789

Many thanks for your your help. I will let you know the outcome.

emzy789

Hi I have had another letter from PE headed:
"letter before county court"
I was a little late posting my appeal to POPLA but it was dated in the time of the 28days. Should I contact POPLA to check they have received my appeal? PE are saying no appeal has been received and I should pay the £100 before the case goes to court!!

Redx

emzy789 wrote: »

Hi I have had another letter from PE headed:
"letter before county court"
I was a little late posting my appeal to POPLA but it was dated in the time of the 28days. Should I contact POPLA to check they have received my appeal? PE are saying no appeal has been received and I should pay the £100 before the case goes to court!!

yes, you better ask popla if its been received and in time , ASAP

otherwise you will be preparing a skeleton defence next

if it was close to the 28 day deadline it should have been done online so you get an email receipt back , and the 28 days is the time to get it to them, not to post it !

emzy789

POPLA have now replied and said they didn't receive my appeal in time and so the charge is payable! is there anything I can do to appeal this? ?