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Popla appeal - parking eye
abersochparking
Posts: 16 Forumite
Hello all.
I've sent my first letter and now have the long one and the POPLA appeal stuff.
I was going to use the letter below. But I have a question. The driver appears to have stayed on the car park for 2hrs 19 mins. They can not remember if it was paid and they overstayed or it was free and they overstayed - we have no way of checking - on holiday at the time.
Will this letter still be ok - I don't know what the charges were!
Re: ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:
I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:
1) No genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) The signage was not readable in the dark so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate
1) No genuine pre-estimate of loss
This car park is Pay and Display. So the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge a few pounds at the most.
In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated over and above £1.50, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.
The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was mostly empty on arrival and almost empty when the driver left.
The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.
The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):
The British Parking Association Code of Practice uses the word 'MUST':
"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.
This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
2) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that ParkingEye merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.
I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). In any case, ParkingEye's witness statements have been exposed as photocopy templates from clients who may well have no knowledge of any individual parking event and the signatory may never even have seen the contract.
3)The signage was not readable in the dusk so there was no valid contract formed between ParkingEye and the driver
The entrance sign states a table of tariffs applicable. Given that the entrance road from which the car park is accessed falls into the 15mph approach speed in accordance with the BPA CoP Appendix B (June 2013), the lack of a clear indication of charges being applicable to a ‘Reasonable Person’ driving past the sign is insufficient to form any contract.
There is no mention on the entrance sign that the site is “Managed By” ParkingEye, as is required in appendix 2 of the aforementioned Code of Practice.
There is also no notification on the entrance sign that there is a ‘Free Period’ during which there is time allowed to park, read the terms and decide whether to enter into any contract or not, which is a requirement under Contract Law.
The only signs are up on poles (away from the Pay machine, which is not a 'sign' nor does it communicate full contractual terms & conditions). Any upright signs were shrouded in darkness and were not seen by the occupants of the car.
I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them: This mechanism also is believed to be deliberate.
Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography.
Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. The only charges the driver knew about were the small sums mentioned on the pay and display machine. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.
4) The ANPR system is unreliable and neither synchronised nor accurate
If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 52 minutes more than the time paid for. And yet their evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that evening.
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. It was dark and if there was such a sign at all then it was neither lit nor prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.
In addition I question the entire reliability of the system. I require that ParkingEye present records as to 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. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response 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 and to show how these camera timings are synchronised with the pay and display machine.
I request that my appeal is allowed.
Yours faithfully,
I've sent my first letter and now have the long one and the POPLA appeal stuff.
I was going to use the letter below. But I have a question. The driver appears to have stayed on the car park for 2hrs 19 mins. They can not remember if it was paid and they overstayed or it was free and they overstayed - we have no way of checking - on holiday at the time.
Will this letter still be ok - I don't know what the charges were!
Re: ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:
I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:
1) No genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) The signage was not readable in the dark so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate
1) No genuine pre-estimate of loss
This car park is Pay and Display. So the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge a few pounds at the most.
In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated over and above £1.50, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.
The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was mostly empty on arrival and almost empty when the driver left.
The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.
The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):
The British Parking Association Code of Practice uses the word 'MUST':
"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.
This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
2) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that ParkingEye merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.
I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). In any case, ParkingEye's witness statements have been exposed as photocopy templates from clients who may well have no knowledge of any individual parking event and the signatory may never even have seen the contract.
3)The signage was not readable in the dusk so there was no valid contract formed between ParkingEye and the driver
The entrance sign states a table of tariffs applicable. Given that the entrance road from which the car park is accessed falls into the 15mph approach speed in accordance with the BPA CoP Appendix B (June 2013), the lack of a clear indication of charges being applicable to a ‘Reasonable Person’ driving past the sign is insufficient to form any contract.
There is no mention on the entrance sign that the site is “Managed By” ParkingEye, as is required in appendix 2 of the aforementioned Code of Practice.
There is also no notification on the entrance sign that there is a ‘Free Period’ during which there is time allowed to park, read the terms and decide whether to enter into any contract or not, which is a requirement under Contract Law.
The only signs are up on poles (away from the Pay machine, which is not a 'sign' nor does it communicate full contractual terms & conditions). Any upright signs were shrouded in darkness and were not seen by the occupants of the car.
I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them: This mechanism also is believed to be deliberate.
Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography.
Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. The only charges the driver knew about were the small sums mentioned on the pay and display machine. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.
4) The ANPR system is unreliable and neither synchronised nor accurate
If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 52 minutes more than the time paid for. And yet their evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that evening.
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. It was dark and if there was such a sign at all then it was neither lit nor prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.
In addition I question the entire reliability of the system. I require that ParkingEye present records as to 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. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response 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 and to show how these camera timings are synchronised with the pay and display machine.
I request that my appeal is allowed.
Yours faithfully,
0
Comments
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do a forum search and see if the same car park has appeared before, also do a google search to get more info too, especially if its appeared on pepipoo or cag at any time0
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abersochparking wrote: »..... They can not remember if it was paid and they overstayed or it was free and they overstayed - we have no way of checking - on holiday at the time.
Will this letter still be ok - I don't know what the charges were!
If you use the Search This Forum function using the location as the search term you will probably find threads from other posters for the same car park.
If you're not clear whether it was P&D or a free car park, then presumably your signage point is not specific to your location. If so you may need to replace that by something of a more general nature.
Anyway see if you can find threads for the same place and that may help you with both issues but come back if you need help re-wording the signage point.
EDIT: Apologies Red for the xover - didn't see you'd already responded - my browser obviously sucks0 -
Hello
I've searched for a couple of hours before giving up on Google and the forum - can't find any reference to it - Abersoch Golf Club.
If nothing comes up again later I will make it more general0 -
Are you a golf club member? Or does the golf club offer the car park for use by the general public?Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.#Private Parking Firms - Killing the High Street0 -
Ring them and ask.abersochparking wrote: »Hello
I've searched for a couple of hours before giving up on Google and the forum - can't find any reference to it - Abersoch Golf Club.
If nothing comes up again later I will make it more generalPRIVATE '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 THREAD0 -
Was it the beach car park owned by the Golf Club?
If so found this on Abersoch Golf Club Facebook siteBeach Car Park - tariffs start on 7 April.
Season tickets available from Golf Club. £120 a car includes social membership of golf club for owner! Remember you can pay on entry, when you get back, or top up if you overstay. You can even pay by text. Drivers will only be fined if they try and avoid paying. Charges do not apply for stays less than 15 minutes.
Tariff : Up to 1 hour £1
Up to 3 hours £2.50
Up to 4 hours £3.20
Up to 8 hours £5
Up to 12 hours £8
Up to 24 hours £12
Charges start at 00.01am each day
Please pass on to whoever you feel would be interested.
The usage of the word fined will be very useful evidence for your POPLA appeal - landowners and their parking agents are not allowed to fine!!!
Get a screen shot - I found it by clicking on the photo of the P Eye sign that is on the Golf Clubs facebook page
Also found a number of references on Google by using Abersoch Golf Club Car Park as the search terms
http://www.abersoch.co.uk/news2013.php
If you do a ctrl f using Parking there are three small articles beginning with this oneMarch 13 2013
Further Update On The Parking Issue
Update to the item below.
One of the main points to arise from yesterday evening's meeting was that the Golf Club will be able to set virtually all the tariffs, timings and tolerances and will be able to react to issues arising. For example, you will not be "fined" if you enter the car park and then leave again straight away or if the car park is full. Another point is that the tariffs shown in the planning application are just examples and are not the ones likely to be used.
Finally, in response to concerns regarding appealing an unfair "fine", you will be able to appeal to the golf club, as well as Parking Eye, so that if the "fine" is found to be unfair, then the golf club have the power to cancel it.
We will update again when further info on the tariffs etc becomes available.
And they contain the following links to Gwynedd councils planning portal for applications made by Parking Eye for the ANPR cameras and signage - and seems to be a number of potentially useful documents in the applications
http://www.gwynedd.gov.uk/swiftlg/apas/run/WPHAPPDETAIL.DisplayUrl?theApnID=C13/0186/39/LL&backURL=%3Ca%20href=wphappcriteria.display?paSearchKey=330605%3ESearch%20Criteria%3C/a%3E%20%3E%20%3Ca%20href=%27wphappsearchres.displayResultsURL?ResultID=1026130%26StartIndex=1%26SortOrder=APNID:asc%26DispResultsAs=WPHAPPSEARCHRES%26BackURL=%3Ca%20href=wphappcriteria.display?paSearchKey=330605%3ESearch%20Criteria%3C/a%3E%27%3ESearch%20Results%3C/a%3E
http://www.gwynedd.gov.uk/swiftlg/apas/run/WPHAPPDETAIL.DisplayUrl?theApnID=C13/0187/39/HY&backURL=%3Ca%20href=wphappcriteria.display?paSearchKey=330541%3ESearch%20Criteria%3C/a%3E%20%3E%20%3Ca%20href=%27wphappsearchres.displayResultsURL?ResultID=1026057%26StartIndex=1%26SortOrder=APNID:asc%26DispResultsAs=WPHAPPSEARCHRES%26BackURL=%3Ca%20href=wphappcriteria.display?paSearchKey=330541%3ESearch%20Criteria%3C/a%3E%27%3ESearch%20Results%3C/a%3E0 -
Thank you ColliesCarer. I'm not so good on the old google it seems!0
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So now you know it looks like the driver didn't top up (but PE haven't made it clear in the NTK) and there was perhaps an initial loss (arguably) you'd be better tweaking your POPLA appeal to suit. Your POPLA appeal will be even better now - good research by ColliesCarer!
I would add near the beginning where you talk about the pay and display, a link to the Golf Club's webpage and quote their words 'Up to 3 hours £2.50' and 'the Golf Club will be able to set virtually all the tariffs, timings and tolerances and will be able to react to issues arising.' And say as you are not local and the driver was using the car park on holiday you have no idea what on earth ParkingEye reckon is still owed/unpaid. And neither do you know whether they applied the information intended by the principal landowner (£2.50 for up to 3 hours) or made up a higher tariff which the Golf Club state is not allowed as they set it themselves. And you can add the intention of this charge is clearly to fine/penalise as confirmed by the landowner - quote the webpage again - so there cannot have been any discussion with the Golf Club about any GPEOL. Therefore ParkingEye cannot now after the charges have been set, make out they 'are' a GPEOL given the lack of any such intentions.
State that PE have not even told you what was paid and what is still outstanding which is in fact a breach of Schedule 4 of the POFA 2012 (gotcha ParkingEye!). It means their Notice to Keeper is not compliant for once.
So you can add an extra paragraph to your POPLA appeal, that they have failed to invoke keeper liability as the NTK omits wording required by paragraph 9 of Schedule 4 of the POFA 2012. Have a look now, at paragraph 9 about what a NTK has to state to inform a keeper (there's a link in the newbies thread and the Act is surprisingly easy to read!). Quote paragraph 9 and the numbered points they haven't included on the NTK about how much has been paid by the driver and how much remains unpaid.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 THREAD0 -
Having worked in IS/IT for more years than I care to count - I've picked up a few wrinkles along the way - in more ways than one
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OK I've updated the letter to include the 'fine' comment - on mine I'll attach the screen grab as well.
I'm hoping this will do it
Re: ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:
I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:
1) No genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) The signage was not readable in the dark so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate
1) No genuine pre-estimate of loss
This car park is Pay and Display. So the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge - £2.50 at the most.
In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated over and above £1.50, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.
The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was mostly empty on arrival and almost empty when the driver left.
The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.
The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):
The British Parking Association Code of Practice uses the word 'MUST':
"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.
This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
On looking at the landowners ‘facebook’ page link here:
https://www.facebook.com/photo.php?fbid=513727872071518&set=pb.399382763506030.-2207520000.1403701296.&type=3&theater
Screen grab below.
It clearly states that this ‘charge’ is indeed a fine. Confirming my assertation that this is no pre-estimate of loss.
2) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that ParkingEye merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.
I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). In any case, ParkingEye's witness statements have been exposed as photocopy templates from clients who may well have no knowledge of any individual parking event and the signatory may never even have seen the contract.
3)The signage was not readable in the dusk so there was no valid contract formed between ParkingEye and the driver
The entrance sign states a table of tariffs applicable. Given that the entrance road from which the car park is accessed falls into the 15mph approach speed in accordance with the BPA CoP Appendix B (June 2013), the lack of a clear indication of charges being applicable to a ‘Reasonable Person’ driving past the sign is insufficient to form any contract.
There is no mention on the entrance sign that the site is “Managed By” ParkingEye, as is required in appendix 2 of the aforementioned Code of Practice.
There is also no notification on the entrance sign that there is a ‘Free Period’ during which there is time allowed to park, read the terms and decide whether to enter into any contract or not, which is a requirement under Contract Law.
The only signs are up on poles (away from the Pay machine, which is not a 'sign' nor does it communicate full contractual terms & conditions). Any upright signs were shrouded in darkness and were not seen by the occupants of the car.
I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them: This mechanism also is believed to be deliberate.
Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography.
Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. The only charges the driver knew about were the small sums mentioned on the pay and display machine. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.
4) The ANPR system is unreliable and neither synchronised nor accurate
If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 52 minutes more than the time paid for. And yet their evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that evening.
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. It was dark and if there was such a sign at all then it was neither lit nor prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.
In addition I question the entire reliability of the system. I require that ParkingEye present records as to 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. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response 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 and to show how these camera timings are synchronised with the pay and display machine.
I request that my appeal is allowed.
Yours faithfully,0
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