response from PE, how to proceed.

greenrunner

Its written in the terms and conditions at bottom of the sign that PE are authorised by the landowner.

I might still argue that it is not clearly visible when entering the site that you would be entering into a contract with PE.
Therfore no transparency of who you are dealing with and misleading.

greenrunner

This is my POPLA appeal, i would appreciate any guidance, pointing out of holes or contradictions.


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. ANPR accuracy
6. ANPR usage
7. Proof of planning consent for parking allowed and ANPR system

1. Non genuine pre-estimate of loss - The Amount of £100 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. 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 £100.

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 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.

It would therefore follow that this charge is Punitive I argue that there is an element of profit included in the charge that is 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. There is no signage leading up to the car park, or at either side of the entrance. The only visible sign from the road is a TO LET sign which implies the land is currently vacant. The first sign is situated 7ft high on a pole behind bollards that a driver needs to concentrate on to maneuvere around safely I doubt that any driver would be able to read the terms of the parking while compleing this manuever.
The signage does not clearly indicate to the driver that they are entering a site managed by ParkingEye. Eddisons is clearly visible as the management company on the signs. This lack of transparency misleads the driver and can only be interpreted as entrapment.

The signage does not indicate which car park it is, this is important due to there been two car parks on globe road both managed by Eddisons, one of which closes at 7pm. This would have had an influence on the drivers decision on whether to use the car park or not due to the time of entry being 6.21pm, no contract could be entered into by the driver as the full terms of parking, closure times and location (plot A or plot of the car park are not clear on the signage.

Under Appendix B Entrance signs of the BPA Code of Practice it states
28.4If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.

I argue that sufficient grace period was not given for the driver to decide to park or not, especially given that signage does not indicate which carpark has been entered and operating times are not clear.
Although it is not a BPA requirement that the grace period is detailed on the signage, in my appeal to Parkingeye I asked them to evidence that the vehicle was in the car park longer than the grace period but they wouldn't/couldn't give me that evidence.

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
7.1If 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 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. 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.

6. 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.

7. Proof of planning consent for car parking allowed and ANPR system - As the site is Managed by Eddisons I argue that Parkingeye do not have the relevant planning consent for the ANPR system.
I request ParkingEye provide proof that they have the necessary planning permissions from the local authorities to operate this car park 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,

Umkomaas

greenrunner wrote: »

Its written in the terms and conditions at bottom of the sign that PE are authorised by the landowner.

I might still argue that it is not clearly visible when entering the site that you would be entering into a contract with PE.
Therfore no transparency of who you are dealing with and misleading.

Still none the wiser!

If this is a major plank of your POPLA appeal it will need to be clearer to them than it is to me - from what you've posted. So send them a photo with a clear cross reference to your appeal point(s), but, unless I'm missing something fundamental (it's been a long day!) it will need to be better described than above.

HTH

greenrunner

This forum won't let me post a link/photo due to been a new user.
If I left this part of the appeal out would it be strong enough?

bod1467

You can post a link - just leave out the http:// part

greenrunner

i1353.photobucket.com/albums/q663/Photopanda21/Mobile%20Uploads/image_zps8aab2d3d.jpg

Dee140157

[url]Http://i1353.photobucket.com/albums/q663/Photopanda21/Mobile Uploads/image_zps8aab2d3d.jpg[/url]

Looks a standard non compliant sign!
Ts & cs minute (very tiny). No idea what they say, and difficult to read.
Does it say how the ANPR pictures will be used?
Who by the way is Eddisons or Globe Road Parking? Are they an arm of parking Eye? It is certainly unclear who is giving the PCN!
No Reduction of PCN offered on sign (BPA require this COP 19.7)

So what is the query about this sign?

greenrunner

I think it does state how ANPR will be used. However this is the first sign you see on entering the car park.
There are no entrance signs to the car park. This sign is at least 15ft into the carpark.
Eddisons are managing the land they manage other business properties etc. Globe road is the location.
Does the reduction of PCN need to be on the signage as well as the letter?

Coupon-mad

That's not a ParkingEye sign. Who are 'GlobeRoadParking.com' as they are not listed as a BPA AOS member even though that sign has a BPA AOS roundel logo on the bottom of it. And it does not clearly state how a motorists data will be used - a pic of a CCTV camera is not enough to state that.

That's a very useful pic for your appeal. The background is presumably the car park in question? Not exactly full of PE signage then! You can say to POPLA that this is the first sign you see on entering the car park and it's purporting to be from a firm called 'GlobeRoadParking.com' who are not a listed AOS member with the BPA despite the AOS roundel logo. The terms and conditions are lost in small print on a dark sign, cannot possibly be read even when standing next to the sign, let alone from a driver's seat inside a moving car on arrival. There are no entrance signs to the car park. This sign is at least 15ft into the car park and is NOT a ParkingEye sign and you can see no ParkingEye signs there.

greenrunner

Okay i've submitted my appeal with photo evidence of inadequate signage.
Thank you all for the advice.