ParkingEye PCN - Welcome Break Fleet M3

magic79

Hello everyone,

Parking Eye have sent me a PCN as the keeper and i'm going to appeal it, no matter if it have a good case for appeal at POPLA or not, this thread is to track its progress and if anyone can provide advice id be very grateful.

The situation was the driver pulled into the Welcome Break in Fleet, at 03:54 for some rest after feeling extremely tired behind the wheel. They left at 08:29 which amounts to an overstay of 2.5 hours. They didn't know the car park was subject to parking fees being a motor way service station, and on entering the car park didn't notice any signs in the dark.

Ive complained to the service station, who told me there was nothing they could do. So now i'm complaining to the various levels of the Welcome Break management regarding how this could affect road safety if motorists are put off from taking rests due to parking management companies ruining their service stations.

I'm going to make the soft appeal first, which i've adjusted very slightly for night time. If someone could give it a quick proof read that would be great.

Thanks in advance!

Dear Parking Eye,

RE: PCN XXXXXX/XXXXXX

I have received your parking 'invoice' impersonating a parking ticket to both my surprise and disgust. It is clear your ethos as a car parking management company is to prioritise profit over road safety, and to use intimidation and deception to pursue motorists money. I will be complaining to the hierarchy of the Welcome Break management, and assert the terrible disservice your company does to their reputation and road safety.

I decline your request to pay or name the driver, neither of which are required by me as the keeper of the vehicle. This is my appeal and all liability to your company is denied on the following basis:

A) The amount is neither a genuine tariff/fee for parking, nor is it based upon any genuine pre-estimate of loss.
You are not the landowner and do not have locus standi.
C) Your signage was not sufficiently prominent for attention, nor lit during night hours, nor clearly worded and consideration did not flow from both parties, so there was no contract.

If you choose not to cancel this invoice you must issue a rejection letter in reply to my appeal, explaining:

1) The legal basis of your charge (i.e. breach, trespass or contractual fee). As keeper, I cannot be expected to guess the basis of your allegation.
If you try to rely upon ParkingEye v Beavis at POPLA, I will point out that it was a flawed decision, it is not binding, and it is set for the Court of Appeal. There is clearly no commercial justification for this punitive charge and no case law to support it.
2) Proof of your locus standi to offer contracts to drivers at this site.
3) Your explanation of the consideration that you believe flowed from the driver, and from yourselves.
4) A copy of the signage site map and close-up pictures of the signs in situ at the time, taken at a comparable time of night in similar dark conditions.
5) The means to make an appeal to POPLA, otherwise you will be reported to the BPA and the DVLA.

Coupon-mad

That's fine to start with as your online appeal first of all, no worries, just to get your POPLA code.

But have a read of the linked examples in 'Successful complaints about PPCs' a sticky thread I started and which I do keep up to date. It's collated by Crabman near the top of this forum board. I would tell you to forget trying to get a decent reply from Welcome Break Head Office or the MD and you'll know why when you read the sticky about complaints to WB. They were almost certainly 'got at' and warned off by PE so now all you get is a template reply written by PE (allegedly). So don't expect much from the 'hierarchy' - more success has been reported by getting to speak to the MSA Manager.

You may like to send your experience to the Daily Mail as they are asking for examples of PPC charges - and service station ones are among the worst. Not only do people who go there, stop for a rest for safety (often overnight, not causing loss or inconvenience to anyone) but the signs are not compliant with the Traffic Signs regs (as all signs within a MSA should be, in accordance with a directive from the DFT). Also, the PPC signs in an MSA are almost never lit either so how does a person - like the driver in your case - know about any maximum free stay applying in the hours of darkness?

Finally, in a DFT consultation it was put forward over a year ago by the Govt in a draft direction about MSA parking charges, that drivers should NOT be penalised but should simply be given the means to pay for any overstay since they might need a longer rest than the free 2 hours and should not have to be 'fined' for resting (my paraphrasing, can't recall their wording). BUT when the actual directive was finalised that entire idea was gone. I saw it spelt out in a DFT draft - but unfortunately saw it too late to comment on the consultation - we can all guess that the BPA did. Hence why that idea, of simply allowing drivers to pay a small non-punitive fee afterwards if they stayed more than 2 hours, was scrapped.

But the good news is, PE probably won't even show any evidence to POPLA if you use the usual forum version of a PE POPLA appeal in due course.


(MSA = Motorway Service Area)

magic79

Ive got my rejection letter from ParkingEye and it came with a POPLA code so i'm ready to appeal.

Fortunately i already prepared my POPLA appeal, its shame Welcome Break wouldn't let me pay for the parking after the event happened. I've complained to them about ParkingEye at the branch, at there customer services, on there facebook page, but they don't seem to care. Terrible company.

Anyway this is my appeal below, could someone let me know if this at the correct standard or if there are any mistakes please? Thank you kindly!!



1) Inadequate and unreadable signs in hours of darkness - No contract with driver
2) Signage Non-Compliant with Motorway Service Station Requirements
3) No Genuine Pre-Estimate of Loss
4) Lack of standing/authority from landowner to issue tickets
5) No contract with the driver and unfair terms
6) ANPR Accuracy

1) At the time of arrival into the motorway service area car park it was extremely dark, as seen from the photo taken by the ANPR camera it was pitch black. The driver did not see any sign on entrance/exit of the car par, nor signs placed within the parking area.

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:

“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''

This would include the signs being lit - and it can be seen from ParkingEye's own photos of an isolated numberplate in the dark, that the entrance (where signs must be clear) was in fact pitch black. 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.

2) This was a Motorway Services Area. Operators of Motorway Services Areas (MSAs) and their agents must comply with the requirements of Government Policy. These provisions are reflected in the Traffic Signs Agreement into which they enter with the Highways Agency. The Highways Agency, on behalf of the Department forTransport (DfT), published a policy on the provision of roadside facilities on it's network. That policy is 'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'.

The policy states that “B19. At all types of site, where a charge is to believed for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.”

The compliance of the MSA with the above policy is disputed and I therefore require ParkingEye to prove that such clearly displayed signage exists within the amenity building(s) at the car park in question. It is not enough to prove that such signage exists within the car park itself.

Furthermore the policy states “All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the Highways Agency’s signs specialist for the use of all non-prescribed signs.”

I require ParkingEye to show proof to the POPLA assessor that the DFT/Highways Agency has granted special authorisation for ParkingEye's traffic signs in this particular MSA to be exempt from this policy requirement. It will not be acceptable for Parking Eye to claim that these particular signs are in ParkingEye's own opinion not 'traffic signs' when these signs have not been erected or positioned to direct pedestrians but instead act to provide information to vehicle users who may never leave their vehicles.

3) The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The ParkingEye state that the PCN is issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract.

Accordingly, the parking charge must be a genuine pre-estimate of loss. ParkingEye has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge.

The BPA Code of Practice states:
“19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. “

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.''

I put ParkingEye to strict proof that that their charge represents a genuine pre-estimate of loss. To date I have seen no detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this private land and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business for example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included in this pre-estimate of loss.

4) ParkingEye do not own this private land and are assumed to be merely agents for the owner or legal occupier; they are issuing parking charges unlawfully as a deterrent, and to generate profit from the the exploitation of motorists, that parking companies have given themselves the right to issue charges on behalf of the land owner, however they do not have that right, unless agreed by contract.
In the Penalty Charge Notice and in the rejection letters, ParkingEye have not provided me any evidence that is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put ParkingEye to strict proof of the contract terms with the actual landowner (not a lessee or agent). ParkingEye have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that ParkingEye are entitled to pursue these charges in their own right.

I require ParkingEye to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

5) There is no contract between ParkingEye and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc. were not satisfied.

The charge that was levied is an unfair term (and therefore not binding)pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes atSchedule 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" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

In the case ParkingEye v Green. (08/05/2014 High Wycombe) Judge Jones ruled there could be no contract in a free car park as there was no consideration from the motorist. For a contract to exist, there must be consideration from both sides and, as this is a free car park, there was no consideration required from the motorist. In this case the judge ruled that a contract did not exist, and therefore the parking company could not claim for breach of contract.

6) This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's ApprovedOperator Scheme Code of Practice. I require the Operator 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 this Operator must 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 inParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator 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 the Operator 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 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 this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary.

I would now like to ask POPLA to please consider the above points an respectfully ask that they find this appeal valid, and the charge be dismissed.

Yours faithfully,

Dee140157

I think you probably have enough there to see Parking Eye. Remember the only loss is the sum of money you did not pay to park longer than 2 hours. £11 which to me is excessive anyway!

If you haven't seen this you might find it of interest regarding the signage!
http://www.cbrd.co.uk/indepth/motoservices/

atilla

And last time i drove into that place, heading to Southampton, There were no signs on the slip road or entry to the carpark. Things may have changed since though.

The_Deep

Disgust yes, but why are you surprised?

This is Rip Off Britain, the only country I know of where you pay to park on a motorway. Where some of the worst food at the highest prices is served, where petrol is dearest, and service almost non-existent.

magic79

Thanks for your posts ppl.

No Atilla, i'm almost certain there's still no signs around the Fleet services and being situated in a wooded area off the motorway only makes it even darker at night.

Were getting screwed over by these service stations, they charge far too much for what they offer, i've started to use supermarkets near motorways instead.

Ive sent the appeal today, hopefully the back log at POPLA isn't too bad.
I'll return to give the good or bad news when its reviewed

Dee140157

To be honest I have used Fleet both ways hundreds of times and can honestly say I have never noticed their signs on the way in. That doesn't mean they aren't there, but my concern like most people's when entering any MSA is to make sure I am following the bit on the road that says cars so I don't end up parking with hgvs! Too busy navigating to read any existent or non existent signs.

atilla

I checked my video cam footage, definitely no signs at or near the entrance.