Parking Eye Cedar Court Huddersfield

ChopperST

POPLA appeal submitted today. Thanks all for your help.

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye.
I raised several specific points to the case in question and it is clear they have not answered any of them in relation to my appeal and have rather sent me a generic template letter that omits to answer hardly any of my queries.

I submit to you 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 inadequate 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

The car park in question is a free car park at the Cedar Court Hotel Huddersfield. ParkingEye have invoiced me as the registered keeper £100. On the day and time in question the occupants of the vehicle allege the car park was less than 50% full. Yet ParkingEye is attempting to charge me £100. They have failed to illustrate how they arrive at this figure and I challenge them to do so i.e. there is no loss applicable in this case as the tariff for parking is £0.

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, 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 exclusively (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 (which in this case is £0), or even loss of retail revenue at the hotel if another car was prevented from parking. However, this is not the case as because as already stated the occupants of the car recall that the car park was less than half full on the day of the alleged offence. Again ParkingEye’s case is the vehicle overstayed in a FREE car park, therefore they can be no consequential loss as their loss an agent and not the landowner is £0.

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 1 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 but a generic one size fits all punitive fee.

The DfT Guidance and in particular 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

On receipt of the PCN and my subsequent appeal I invited ParkingEye to provide me with evidence as to their locus standi to issue charges at this site. Not only did they fail to do so they plain ignored my request alongside several other of my points.

I can therefore only deduce by default 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 did hold a bare licence to supply and maintain signs and to post out parking charges 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 verify 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 or was 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 inadequate so there was no valid contract formed

The occupants of the car on the day in question maintain in the absolute strongest possible terms that there were NO SIGNS advising of ParkingEye’s operation at the site and following a return visit to the site these have been added retrospectively and after the date of the alleged contravention.

Furthermore it has been brought to my attention that this is a relatively new site to ParkingEye and as such they have only recently begun their operations there. There has been no discretionary period whatsoever during the change of administration to allow drivers to adjust to the new parking rules. This is in direct contravention of the BPA code of conduct. Specifically section 18.11 which states “Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.”

This was a point strongly argued in the appeal letter to ParkingEye sent by myself as the registered keeper and I asked them specifically on this matter to reply to me with the dates they began operations at Cedar Court Huddersfield and the dates and evidence thereof signage advising / warning people of their operations. Furthermore I specifically asked them to illustrate their compliance with BPA codes 18.11, 18.1, 18.2 and 18.3. Yet again they chose to ignore these points and not even answer the question, furthermore they failed to provide me with any evidence that they were installed on the date in question.

In addition ParkingEye utilises an ANPR system to issue invoices on the site at Cedar Court Hotel. The BPA code of conduct 21.1 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.” The occupants of the vehicle are adamant that on the day in question that there was NO signage advising the use of ANPR cameras and these have been installed retrospectively and after the event. It is therefore impossible that the use of ANPR cameras was used in a reasonable, consistent or transparent manner by the fact of the absent signage from the car park on the day in question. Again despite my appeal ParkingEye have produced no evidence to demonstrate when signs were installed advising of the use of ANPR on the site, which can lead me to one of two conclusions;

1. The signs were installed after 16.7.14 of which ParkingEye are aware of and are therefore aware that admission of this would be an admission of their absence on that particular day and a breach of the BPA code.
2. ParkingEye have no record of the date of installation and / or site map whatsoever, which again is in breach of the BPA code.

I draw your attention to BPA code 18.1 “A driver who uses your private car park with your
permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.”

BPA code 18.2 states “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.”

BPA code 18.3 states “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

On the day in question the occupants of the vehicle allege that there were clear breaches of these aspects of the BPA code namely;

1. No sign at the entrance to the hotel from the main road nor entering the hotel car park (BPA code 18.2)
2. No easily visible sign within the car park seen by either of the two occupants of the vehicle (BPA Code 18.1, 18.3)
3. To date ParkingEye have produced no evidence that signs were present and their installation date and I therefore deduce by default they have no record of such. (BPA code 18.3)

Unless ParkingEye produce evidence to the contrary I allege ParkingEye are in breach of several points of the BPA code of conduct as set out above in view of the absent signage on the day in question and therefore no valid contract could be formed as information did not flow between both parties i.e. there was no way a driver could make an informed decision as to whether to park as there WERE NO SIGNS!

Any photos supplied by ParkingEye to POPLA will no doubt show the signs present on site and 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. 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 there were no signs suggesting their operation or terms and conditions in operation.

4) The ANPR system is unreliable and neither synchronised nor accurate

If ParkingEye's ANPR records are completely reliable (which I contest) 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. Indeed it has previously been noted by POPLA assessor Matthew Shaw in a previous successful POPLA appeal in May 2014 and as such I feel a president has been set regarding the unreliability of their ANPR system. To quote the specific case;

“that where a registration mark is misread, or not read at all and no photo is recorded by the ANPR camera, then the system is “configured to record the duration of stay as the first and last exit”, and to ignore any isolated entry or exit in between. On that basis, the ANPR need only have missed either the vehicle’s initial exit or re-entry. Because the site was very congested at the times in question, the Appellant submits that the ANPR error is most likely to have been caused by another vehicle obscuring his registration mark. In any event, the Appellant suggested various pieces of evidence that the Operator ought to reasonably provide to prove its case. This included evidence to show that it had conduct searches of its ANPR database to rule out multiple entries/exits on the day in question. The Operator did not produce any evidence to address these issues. On balance, I find that the Operator has not discharged its burden to prove the offence by refuting the Appellant’s submissions. The appeal is allowed on this ground. “

It is therefore within the realms of possibility that the system at Cedar Court operating on the day in question may well have fallen victim to such a phenomenon of the vehicle entering the car park and leaving on two separate occasions but only recording two of these events and as such creating the appearance of the vehicle being in the car park for a longer period than was actually the case.

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 approaching darkness 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 as the evidence in the Fox-Jones case.

I request that based upon the points above my appeal is allowed.

Coupon-mad

That's very good - no GPEOL in detail, as ever, but also the signage and ANPR sections are particularly strong as you've carefully added specific arguments and a decision by Matthew Shaw I had forgotten about. I might even add that quote about ANPR double visits to the template where that issue is covered.

You'll win!

DollyDee_2

If ParkingEye's ANPR records are completely reliable (which I contest) 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. Indeed it has previously been noted by POPLA assessor Matthew Shaw in a previous successful POPLA appeal in May 2014 and as such I feel a president has been set regarding the unreliability of their ANPR system. To quote the specific case;


president should be precedent

Sorry, I've only just read it and you've already sent it.

ChopperST

As predicted the appeal won today. PE offered no evidence. Here's the decision in case it helps anyone else.

Thanks to all who helped, in particular Dee and Couponmad

The Operator issued parking charge notice number xxxxxxx arising out of a presence on private land, of a vehicle with registration mark xxxx xxx
The Appellant appealed against liability for the parking charge. The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are as set out. The Operator should now cancel the parking charge notice forthwith.

It is the Appellant’s case that the parking charge notice was issued incorrectly.

The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.

Accordingly I have no option but to allow the appeal.

Shehla Pirwany
Assessor

steve1500

I know the hotel very well. It will be interesting if PE starting cluttering windscreens for functions etc.


The hotel is always having Tribute band nights & arrange your wedding day events and so on

ChopperST

It's an ANPR system so you only find out when you get a letter in the post.