ParkingEye Telford Bridge

109

Hi can some take a look at/comment on my POPLA appeal please? not sure if I should leave comment about only 1 set of cameras used that point at distant side of mini roundabout not actual entrance/exit to car parks? :-


I am the registered keeper of the vehicle above and I am appealing against this parking charge as I believe I am not liable on the grounds stated below. I request that all points are taken into consideration.
1) Charge is not a Genuine Pre-estimate of Loss
2) Inadequate Signage
3) ANPR Accuracy
4) ANPR Useage
5) No standing to pursue charges nor form contracts with drivers
6) Unreasonable/Unfair Terms
1. The Charge is not a genuine pre-estimate of loss.The amount of £100 charged by Parking Eye is not a genuine pre-estimate of loss.
The car park at xxxxxx is free and has no provision for the purchasing of a ticket or any other means for paying for parking. No damage and/or any obstruction/s was caused by my vehicle. There can, therefore, be no loss arising from the incident.
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 which 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 this is a Free Car Park, the PCN sum is massively inflated. I require Parking Eye to submit a breakdown of how the charge was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.
The Parking Eye Notice to Keeper, their reply to my appeal to them and signage all allege 'breach of terms & conditions / failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. It might be reasonable for a sum to be based 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 occupant(s) of the car recall(s) that the car park was not full, and there was no lost parking revenue as it is a Free of Charge car Park.
In addition, Parking Eye 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, some where they have pay and display, and others which are free car parks. Given that Parking Eye charge the same lump sum for a 20 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 obvious 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. In addition, as heads of cost (wages, uniforms, normal operational costs and tax-deductible back office functions, debt collection, etc) cannot possibly flow as a direct consequence of this parking event, Parking Eye would have been in the same position had the parking charge notice not been issued, and would still have had many of the same business overheads even if no vehicles breached any of the terms.
The BPA Code of Practice requires that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. Parking Eye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some 'commercial justification' statement they may have devised / produced 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.''

In answer to a proposition from a PPC concerning "commercial justification" about the Parking Eye v Beavis small claims decision, 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.''

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

2) Inadequate Signage.
The signage used by Parking Eye was not clearly readable so there was no valid contract formed between Parking Eye and the driver. It is argued that the signs used by Parking Eye were not prominent enough, were too highly placed and the wording was too small for any driver to see, read or understand when driving into this car park. The actual car park entrance does not have any signs advising drivers of the terms of the car park and are only sporadically placed around the whole car park. There are also no signs placed outside the various shops and businesses at the retail park for visitors to see and read.
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".
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. 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. As Parking Eye are arguing the driver entered into a legal contract with them based ENTIRELY on signage, Parking Eye needs to show evidence and signage map/photos on this point - specifically showing the height of the signs, height of lettering, size of signs, where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on signage within the car park do not alter the contract which must be shown at the entrance. The signs failed to properly and clearly warn/inform the driver of the terms and conditions in this car park as they failed to comply with the BPA Code of Practice appendix B. I require Parking Eye to provide evidence that proves otherwise.
3. ANPR Accuracy
Parking Eye is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.
In addition I question the entire reliability of the system. I require Parking Eye to 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 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 by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence produced by Parking Eye was 'fundamentally flawed' as 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 Parking Eye in this case to show evidence to rebut this point: 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 only connected 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 this Operator may well be unreliable.
I cannot confirm that the timing, provided by Parking Eye, of the vehicle entering and exiting the park is correct. As their whole charge rests upon two timed photos, I put Parking Eye to strict proof to the contrary.
4. 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'.
Parking Eye fail to operate the system in a 'reasonable, consistent and transparent manner'. As Parking Eye failed to place signs at the entrance to the car park, place signs within the grounds of the car park too high to see on arrival or read adequately, 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.
Parking Eye uses camera’s at one entrance/exit of the retail park. The cameras only record the time that a vehicle enters the area and when it leaves, they do not record the actual parking event nor the point at which the contract to park is entered into. There are five separate actions involved here that relate to the parking event.

1.Driving into the car park area. (Entry time recorded on camera).
2.Searching for and parking the car in a suitable space.
3.Finding and reading the terms and conditions of parking offered at the retail park.
4.Acceptance of those terms and conditions by remaining at the car park.
5.Driving out of the parking space.
6.Driving out of the retail park. (Exit time recorded on camera).
The times of the actual ‘parking under contract’ event therefore differ significantly from the entry and exit times recorded by the cameras. Furthermore, the system takes no account of the regular problems in effecting a parking space, allowances for delivery vehicles attending the park and holding up the flow of the traffic in the car park, restricted lanes due to unit redevelopment and a speedy but safe departure from the car park and exit onto the main road. The BPA Ltd Code of Practice requires that parking operators can only rely on camera evidence if it does so in a reasonable, consistent and transparent manner. Parking Eye has failed to recognise that it takes time to get in, find a space, consider the terms and conditions and then safely leave. Parking Eye's claim for a parking charge for an alleged overstay based solely on the entry and exit times recorded by cameras is therefore fatally flawed, unreasonable and cannot be relied upon, to prove its case. This is particularly relevant in this case as the overstay in the free car park has been recorded as only 20 minutes.
'I maintain that the contravention of parking did not occur' and that an alleged overstay of just 20 minutes when the timing starts merely from arrival in moving traffic before entering a mini roundabout, leading to four car park entrances/exits, two of which accessed from a road leading to the delivery area behind shop units, and ends after final exit beyond the same mini roundabout on a public road, all by one set of cameras pointed at the far side of said mini roundabout, and thus fails to show any parking time at all. In a busy car park it is entirely possible that it could take 15 minutes or more just to drive round and find a space to park in, then on exit cars queue to leave and there are pedestrians to give way to, so as keeper I believe the actual parking time was within the alleged time allowed on the alleged signage anyway. Added to that the fact that ANPR is not 100% accurate - if PE disagree they need to provide proof from the manufacturer's handbook or similar documentary evidence of a faultless system, which would be surprising seeing as even Councils allow for around 5% error rate in timings when using camera enforcement.

5. No standing or authority to pursue charges, nor form contracts with drivers

I believe that Parking Eye 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, Parking Eye 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 Parking Eye 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 neither 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 Parking Eye to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between Parking Eye and the landowner. This is required so that POPLA and myself can check that it allows this particular 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, Parking Eye'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.

6. Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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 charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness."
I contend it is wholly unreasonable to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. In addition, the signage of terms were placed too high to read and a lack of entrance sign mentioning these charges is far from 'transparent'. I put this Operator to strict proof to justify that their charge does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.
In conclusion, I therefore respectfully request that my appeal is upheld and the charge dismissed.

Dee140157

It looks fine. One minor thing, can you put a space between each paragraph so not such blocks of text.

I think you will have won on first point and it will be a PE no show.

Send it off .

Guys_Dad

I think we have missed the the best point from your first post.
The NTK arrived out of time and as such the keeper can't be held liable.

POPLA have recently allowed appeals on this point so check the POPLA appeals thread.
Appeal point 1 should be that the contravention is alleged to have happened on 5th July. NTK was dated 14th and posted. POFA says that 2 working days must be allowed for posting and that NTK must be in your hands within 14 days. Clearly this didn't happen and therefore keeper liability does not apply. You were not the driver on the day. Appeal must be granted.

Make sure that your long appeal does not identify you as driver, although the adjudicator should only need the above appeal point. Keep the rest in but make out of time the first point to save adjudicator time.

Dee140157

The OP says

looks to be dated 19/07/2014

That is a little unclear as it either is or isn't dated that date. If it is, then yes it is out of time for POFA 12 to apply to driver. If it is earlier, then probably not out of time. Perhaps the OP could confirm.

Guys_Dad

Dee140157 wrote: »

The OP says

That is a little unclear as it either is or isn't dated that date. If it is, then yes it is out of time for POFA 12 to apply to driver. If it is earlier, then probably not out of time. Perhaps the OP could confirm.

The NTK would have had to have been posted on the 16th to comply because of weekends.

109

Thanks for the comments Dee140157 and Guys Dad, Just to go over again, some time between Tuesday 22/07 and Friday 25/07 I received letter from PE to say Parking Charge Notice Reminder, confusing as did not get parking charge notice from them before. Top right has:-
Ref No,
Vehicle reg,
Vehicle make,
Date of event 05/07/2014, (This was a Saturday)
Date issued 10/07/2014,
Payment Tel No,
Date 19/07/2014, (This also is a Saturday)

Of course they will argue they sent the original, but I never received it, otherwise I would have posted earlier. Sorry Guys Dad where did the 14/07 come from?
Appeal point 1 should be that the contravention is alleged to have happened on 5th July. NTK was dated 14th and posted. POFA says that 2 working days must be allowed for posting and that NTK must be in your hands within 14 days.

Guys_Dad

109 wrote: »

Thanks for the comments Dee140157 and Guys Dad, Just to go over again, some time between Tuesday 22/07 and Friday 25/07 I received letter from PE to say Parking Charge Notice Reminder, confusing as did not get parking charge notice from them before. Top right has:-
Ref No,
Vehicle reg,
Vehicle make,
Date of event 05/07/2014, (This was a Saturday)
Date issued 10/07/2014,
Payment Tel No,
Date 19/07/2014, (This also is a Saturday)

Of course they will argue they sent the original, but I never received it, otherwise I would have posted earlier. Sorry Guys Dad where did the 14/07 come from?
Appeal point 1 should be that the contravention is alleged to have happened on 5th July. NTK was dated 14th and posted. POFA says that 2 working days must be allowed for posting and that NTK must be in your hands within 14 days.

Typo, I am afraid. It should be 18th. Sorry

The point, however, is that the NTK was out of time. It needed to be with you on the last working day before the 20th which is the 18th. It must, therefore, be dated 16th or before.

It isn't
They haven't complied with POFS re keeper liability.
You simply need to say that and deny driving. POPLA has no option but to dismiss the charge.
QED.
This is a legal rather than "technical" decision, such as GPEOL which calls for a judgement to be made by the adjudicator, and MUST be observed. But, as I said, include the others as fallback.


They couldn't by the way, say they sent an "original" as it either had to be a windscreen ticket, in which case they need to wait 28 days before contacting you, so another POFA fail. Anyway, 99% of PE cases are ANPR.

109

Guys Dad there was no windscreen ticket as this was purely ANPR spy camera, not pay & display, so as my first knowledge of this demand for money was the reminder should this still go in at the top somewhere?

Guys_Dad

109 wrote: »

Guys Dad there was no windscreen ticket as this was purely ANPR spy camera, not pay & display, so as my first knowledge of this demand for money was the reminder should this still go in at the top somewhere?

No harm in spelling it out so go ahead.

109

edited added to ect.... please feel free to comment suggest changes ect hopfully this is ready to go to POPLA:-

POPLA CODE xxxxxxxx
Vehicle registration number xxxxxxx.

I am the registered keeper of the vehicle above and I am appealing against this parking charge issued by ParkingEye, as I believe I am not liable as the first and only NTK I received was a reminder that is dated the 19th July 2014. (See copy). POFA says that 2 working days must be allowed for posting and that the NTK must be in the recipient’s hands within 14 days. Clearly this did not happen and therefore keeper liability does not apply. I was not the driver on the day. I therefore respectfully request that my appeal is upheld and the charge dismissed.
I also believe I am not liable on the grounds stated below and I request that ALL points are taken into consideration.

1) Charge is not a Genuine Pre-estimate of Loss
2) Inadequate Signage
3) ANPR Accuracy
4) ANPR Usage
5) No standing to pursue charges nor form contracts with drivers
6) Unreasonable/Unfair Terms

1. The Charge is not a genuine pre-estimate of loss. The amount of £100 charged by Parking Eye is not a genuine pre-estimate of loss.
The car park at xxxxxx is free and has no provision for the purchasing of a ticket or any other means for paying for parking. No damage and/or any obstruction/s was caused by my vehicle. There can, therefore, be no loss arising from the incident.
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 which 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 this is a Free Car Park, the PCN sum is massively inflated. I require Parking Eye to submit a breakdown of how the charge was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.
The Parking Eye Notice to Keeper, their reply to my appeal to them and signage all allege 'breach of terms & conditions / failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. It might be reasonable for a sum to be based 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 occupant(s) of the car recall(s) that the car park was not full, and there was no lost parking revenue as it is a Free of Charge car Park.
In addition, Parking Eye 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, some where they have pay and display, and others which are free car parks. Given that Parking Eye charge the same lump sum for a 20 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 obvious 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. In addition, as heads of cost (wages, uniforms, normal operational costs and tax-deductible back office functions, debt collection, etc) cannot possibly flow as a direct consequence of this parking event, Parking Eye would have been in the same position had the parking charge notice not been issued, and would still have had many of the same business overheads even if no vehicles breached any of the terms.

The BPA Code of Practice requires that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. Parking Eye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some 'commercial justification' statement they may have devised / produced 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.''

In answer to a proposition from a PPC concerning "commercial justification" about the Parking Eye v Beavis small claims decision, 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.''

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

2) Inadequate Signage.
The signage used by Parking Eye was not clearly readable so there was no valid contract formed between Parking Eye and the driver. It is argued that the signs used by Parking Eye were not prominent enough, were too highly placed and the wording was too small for any driver to see, read or understand when driving into this car park. The actual car park entrance does not have any signs advising drivers of the terms of the car park and are only sporadically placed around the whole car park. There are also no signs placed outside the various shops and businesses at the retail park for visitors to see and read.
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".
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. 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. As Parking Eye are arguing the driver entered into a legal contract with them based ENTIRELY on signage, Parking Eye needs to show evidence and signage map/photos on this point - specifically showing the height of the signs, height of lettering, size of signs, where they are at all entrances to this site, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on signage within the car park do not alter the contract which must be shown at the entrance. The signs failed to properly and clearly warn/inform the driver of the terms and conditions in this car park as they failed to comply with the BPA Code of Practice appendix B. I require Parking Eye to provide evidence that proves otherwise.

3. ANPR Accuracy
Parking Eye is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.
In addition I question the entire reliability of the system. I require Parking Eye to 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 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 by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence produced by Parking Eye was 'fundamentally flawed' as 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 Parking Eye in this case to show evidence to rebut this point: 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 only connected 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 this Operator may well be unreliable.
I cannot confirm that the timing, provided by Parking Eye, of the vehicle entering and exiting the park is correct. As their whole charge rests upon two timed photos, I put Parking Eye to strict proof to the contrary.

4. 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'.
Parking Eye fail to operate the system in a 'reasonable, consistent and transparent manner'. As Parking Eye failed to place signs at the entrance to the car park, place signs within the grounds of the car park too high to see on arrival or read adequately, 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.
Parking Eye uses camera’s at one entrance/exit of the retail park. The cameras only record the time that a vehicle enters the area and when it leaves, they do not record the actual parking event nor the point at which the contract to park is entered into. There are five separate actions involved here that relate to the parking event.

1. Driving into the car park area. (Entry time recorded on camera).
2. Searching for and parking the car in a suitable space.
3. Finding and reading the terms and conditions of parking offered at the retail park.
4. Acceptance of those terms and conditions by remaining at the car park.
5. Driving out of the parking space.
6. Driving out of the retail park. (Exit time recorded on camera).

The times of the actual ‘parking under contract’ event therefore differ significantly from the entry and exit times recorded by the cameras. Furthermore, the system takes no account of the regular problems in effecting a parking space, allowances for delivery vehicles attending the park and holding up the flow of the traffic in the car park, restricted lanes due to unit redevelopment and a speedy but safe departure from the car park and exit onto the main road. The BPA Ltd Code of Practice requires that parking operators can only rely on camera evidence if it does so in a reasonable, consistent and transparent manner. Parking Eye has failed to recognise that it takes time to get in, find a space, consider the terms and conditions and then safely leave. Parking Eye's claim for a parking charge for an alleged overstay based solely on the entry and exit times recorded by cameras is therefore fatally flawed, unreasonable and cannot be relied upon, to prove its case. This is particularly relevant in this case as the alleged overstay in the free car park has been recorded as only 20 minutes.
'I maintain that the contravention of parking did not occur' and that an alleged overstay of just 20 minutes when the timing starts merely from arrival in moving traffic before entering a mini roundabout, leading to four car park entrances/exits, two of which accessed from a road that leads to the delivery area behind shop units, and ends after final exit beyond the same mini roundabout on a public road, all by one set of cameras pointed at the far side of said mini roundabout, and thus fails to show any parking time at all. In a busy car park it is entirely possible that it could take 15 minutes or more just to drive round and find a space to park in, then on exit cars queue to leave and there are pedestrians to give way to, so as keeper I believe the actual parking time was within the alleged time allowed on the alleged signage anyway. Added to that the fact that ANPR is not 100% accurate - if PE disagree they need to provide proof from the manufacturer's handbook or similar documentary evidence of a faultless system, which would be surprising seeing as even Councils allow for around 5% error rate in timings when using camera enforcement.

5. No standing or authority to pursue charges, nor form contracts with drivers

I believe that Parking Eye 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, Parking Eye 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 Parking Eye 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 neither 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 Parking Eye to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between Parking Eye and the landowner. This is required so that POPLA and myself can check that it allows this particular 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, Parking Eye'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.

6. Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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 charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness."
I contend it is wholly unreasonable to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. In addition, the signage of terms were placed too high to read and a lack of entrance sign mentioning these charges is far from 'transparent'. I put this Operator to strict proof to justify that their charge does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.
In conclusion, I therefore respectfully request that my appeal is upheld and the charge dismissed.