Parking Eye PCN

Hi guys, thanks for the newbies stick threads. Much appreciated.
My situation is a PCN for an overstay at Gordano motorway services.
I have read the newbies sticky thread and hope that the shortened e-mail response available there given to PE will be enough to cancel the PCN but am not holding my breath.:-).

My questions-- I took a screenshot of the appeal - is this enough as proof of appeal or should I also send a copy with proof of posting ?

Should they reply within two weeks of the appeal lodged or two weeks after 28 days has elapsed.

When PE reject the appeal !! I am considering using parking ticket appeals. Has anyone used these ? Are they legit or a scam and is there any benefit in using these rather than trawl through the 'appreciated' mountain of paperwork here? Or will they use exactly the same arguments.

Thanks for all the help given. :T

Noideer
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Replies

  • edited 31 August 2014 at 7:32AM
    Dee140157Dee140157 Forumite
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    edited 31 August 2014 at 7:32AM
    Ok, screenshot will do fine as PE are pretty efficient at email appeals.

    Yes parking ticket appeals are legit and good and run by a couple of members of this forum. So if stressed out, if you find this all beyond you, pushed for time, life really getting on the way, etc a great idea.

    However you are clearly switched on and this is a straightforward MSA appeal, for which there are one or two good examples of appeals linked to in the newbie thread, and I really do think you could do this yourself. And yes since PTA contribute to most of the legal points on here, they will use the same self ones. I am not aware they have other arguments they use beyond the ones here. So a great bunch for those who need it, but do you?

    We are after all a money saving site!
    Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.
  • noideernoideer Forumite
    15 Posts
    Thanks Dee, I have started trawling the site to build the Popla appeal in anticipation. And will post up for approval when needed.

    Thanks again

    Noideer
  • Stage. 2 of process. I seem to have received the routine rejection letter from PE. Confirmed the validity dates and now constructed my Popla appeal below. I know your all busy but comments/recommendations grateful before sending off.
    Do I send straight away or as near as poss to deadline? Also how long are Popla taking to make a decision.
    Thanks for help
    no-i. :T

    Popla my appeal

    POPLA REF XXXXXXXXXXXXXXXX

    CAR REG Xxxxxxxx

    As the registered keeper of the car mentioned above I would like to appeal the parking charge notice issued by ParkingEye Ltd for a number of reasons outlined below:

    1. The charge is punitive and is not a genuine pre-estimate of loss.
    2. ParkingEye Ltd has no contractual authority
    3. Keeper Liability Requirements and the Protection of Freedom Act
    4. ANPR Accuracy and Compliance
    5. No Contract was entered into between the Parking Eye and the Driver or Registered keeper
    6. Unfair terms of contract
    7. Non BPA /MSA compliant signage


    1.The charge is punitive and is not a genuine pre-estimate of loss

    Judging by the wording of the parking charge notice this is clearly an attempt to enforce this charge under paragraph B 19.5 of the BPA Code of Practice in which it states that this must be a genuine pre-estimate of the loss that may have incurred. Whilst the tariff to park for the day is just £10 ,they are asking for a charge of £100 for this penalty. This alone is far more than the cost to the landowner could have lost for the time my car was said to have parked there. The charge is clearly punitive and disproportionate to any alleged breach of contract.
    Nor is the charge 'commercially justified'. If parking eye cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - that:

    ''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''

    Furthermore as the operator is clearly seeking to impose a penalty, it is their sole responsibility to provide a full breakdown as proof of the pre-estimated loss of £100. As of this point they have made no effort to provide me with a breakdown of the costs they allegedly incurred. To justify the charge of £100, I require ParkingEye Ltd to back up their decision by providing POPLA with a full and detailed financial breakdown of the pre-estimated costs they have suffered as a result of the charge in question, flowing from an initial loss, which in a free car park is zero! I would like to add that normal costs of running their business (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as ParkingEye Ltd would need to pay these irrespective of this alleged charge. Parking enforcement costs cannot possibly represent any loss resulting from an alleged breach of contract, as these costs would need to be paid whether the breach had happened or not .

    A recent Popla appeal was allowed for the following reason

    'Considering the evidence before me, I find that the operator has not provided evidence of an initial loss, which is a loss incurred prior to enforcement action being taken, such as the loss of the parking fee in the case of a pay and display car park where no ticket was purchased. Once such a loss is shown, losses flowing from it may be claimed, but without such a loss that is not the case. Whilst the losses stated by the operator may well flow from a breach, and initial loss must be shown in order to claim costs in respect of them. As an initial loss must be shown in order for a charge to constitute a genuine pre-estimate of loss, the operator has failed to show that the charge is a genuine pre-estimate of loss. Therefore the charge notice is invalid. Having found this, I am not required to consider any further issues raised by the appellant.'

    Accordingly, this appeal must be allowed.

    Christopher Monk
    Assessor

    In summary not only is the £100 charge completely disproportionate meaning that it is punitive and is breaking the Unfair Contract Terms Act 1997, but there can be no loss shown at all as no pre-estimate charge has been put together making the charge unenforceable against me or the driver.

    2. ParkingEye Ltd has no contractual authority

    In the notices they have sent me ParkingEye Ltd have not shown any evidence that they have any proprietary interest in the car park/land in question. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I require ParkingEye Ltd to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that ParkingEye Ltd are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

    A recent successful Popla appeal states :-

    'The Appellant has asked to see proof that the Operator has the authority to issue parking charges. The Operator has failed to provide a copy of the contract between themselves and the landowner to show that they have the authority to issue parking charge notices and therefore I have no evidence before me to refute the Appellant’s submission. The onus is on the Operator to prove their case against the Appellant and on this occasion they have not done so.
    Accordingly, this appeal must be allowed.'
    Nozir Uddin
    Assessor

    3. Keeper Liability Requirements and the Protection of Freedom Act

    As keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge. In regards to the notices I have received Parking Eye has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

    I would like to point out that Schedule 4 paragraph 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver). In their parking charge notice letter at no point did they actually invite me as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact I am under no legal obligation to do so). The wording of the PCN actually makes it sound like I have little choice but to give up the driver and does not actually state the choice to pay it myself.

    A recent successful Popla appeal decision stated :-

    'As the appellant has at no point admitted to being the driver of the vehicle and no evidence of this has been provided, in order for the appellant to be liable for the charge the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with. One of these requirements is the issue of a ‘notice to keeper’ compliant with certain provisions. In these circumstances, these provisions are found in paragraph 9 of Schedule 4 of the Act. The operator must produce evidence that this has occurred regardless of whether the issue is raised by the appellant, as the liability is not based in the law of contract but is created by the statute. As the notice to keeper issued by the operator appears not to comply with sub-paragraph 2(b) as it does not “inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.” The fact that some or all of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the notice to keeper is compliant. As the notice to keeper is not valid, I cannot find that the charge notice is enforceable against the appellant. In the light of this, I am not required to consider the appellant’s substantive case.'

    I would also like to point out that the Act stipulates that the parking company must provide me with the period the car was parked. I would strongly argue that the format of evidence provided (photographs from a number plate recognition camera showing the vehicle enter and leave the car park) is not actually valid or sufficient on its own as a form of evidence. Parking Eye should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do

    4. ANPR Accuracy and Compliance

    I require ParkingEye Ltd 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 ParkingEye Ltd 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 in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from 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 ParkingEye Ltd 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 in the Fox-Jones case and I put this Operator to strict proof to the contrary.

    In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
    ''21 Automatic number plate recognition (ANPR)
    21.1 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.
    21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
    21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
    21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
    • be registered with the Information Commissioner
    • keep to the Data Protection Act
    • follow the DVLA requirements concerning the data
    • follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

    At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

    5. No Contract was entered into between Parking Eye and the Driver or Registered keeper

    I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Parking Eye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed.
    It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

    Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

    I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

    6. Unfair terms of contract

    Although there is no contract between Parking Eye and the driver (or myself), if there were then I would ask POPLA to consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply. I have highlighted the following specifically as I believe they apply directly to this case:

    2. (1) (e) Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

    5. (1) 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.

    5. (2) 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.

    The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one ParkingEye Ltd are suggesting. A company such as Parking Eye needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

    7. Non BPA /MSA compliant signage

    Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance, the parking space used, or exits to any of the shops.

    I contend that the signs and any core parking terms ParkingEye are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and anyconsequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

    SIGNAGE NON-COMPLIANT WITH MOTORWAY SERVICE STATION REQUIREMENTS
    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 its 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 be levied 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 SignsRegulations 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 adjudicator 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.

    The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

    The Operator needs to show evidence and signage map/photos on this point - specifically showing the height and lighting of the signs and 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 the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

    As a POPLA assessor has said previously in an adjudication
    “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

    The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

    The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

    I respectfully request that this parking charge notice appeal be allowed and await your decision.

    Registered Keeper
  • edited 5 September 2014 at 9:17PM
    ampersandampersand Forumite
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    edited 5 September 2014 at 9:17PM
    Hello op -
    Good start, but lose I/me/my where you can for 'the appellant' or 'the registered keeper'. Also, I have to say I'd lose all 'narky' tone/asides and adjectives, tempting though they are to include.

    Use full words only,so 'it is', not it's
    Are you able to include pics? If you can, accurately correct the no. of signs Parking Lie claim are visible. I truly showed there were none.

    e.g.- 1: pared down, too much nark in there - Mr Beavis is challenging that small claim decision in the Court of Appeal, as HHJ Moloney fully expected at the time. In addition, POPLA Assessor Chris Adamson recently failed to validate a VCS alleged 'loss statement', recording that: 'etc.etc.
    [lose Excel bit. pe are not a sister company to excel.]


    para 2, lose 1st clause-just ' ParkingEye Ltd have not shown any evidence that they have any proprietary interest in the car park/land in question. '

    'If they are agents for the owner/legal occupier, they do not have the necessary legal right'

    Again, remember 'the appellant' or 'the registered keeper' are preferable to I/me/my throughout.

    3. has a punctuation nitpick - comma essential here: ' I decline, as is my right, to provide the name of the driver of the vehicle at the time in question,'

    5. Careful. Distance yourself - 'The RK replicated the driver's journey....' 'There are no signs...etc.etc.'

    para 7. I'd include 'contemporaneous' against requirement of proof/pics from parkinglie. e.g. ' I require the operator to provide contemporaneous photographic evidence as proof to the contrary'

    You require ' proof of a full unredacted copy of the contract in force at the time of the alleged parking event'.

    'I am not liable for any charge'

    ...op, I am having huge putah problems and cannot go further with this now - 2 hrs so far, for so little:-) Page loss, black-outs, text no-shows.
    Others will help, I know. Just be clinical, not smart-alecky. Save celebrations for the POPLA success Thread.
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  • Many thanks for reply- little late now but will update tomorrow for approval.
    You have obviously spent a lot of effort proof reading which I really appreciate. What do you consider as smart-alecky ? Not defensive, I've only just plagiarised from the forum so would really like to know which parts - so I can amend !
    Many thanks
    No-i
  • Dee140157Dee140157 Forumite
    2.9K Posts
    Part of the Furniture Combo Breaker Mortgage-free Glee!
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    I think ampersand has gone through most of the amendments needed. It is a long appeal, and should make them cancel rather than read!
    You have all the winning points in so that is good.

    And I'm not quite sure which points need a little more neutral tone on them either, so will be interested to see what ampersand says.

    But a's critique is otherwise very good, so worth going with.
    Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.
  • Updated version taking on board comments so far. Still unsure on the 'smart- alecky' comments to delete or the premature celebrations tho.
    Thanks for all help again - don't worry, be brutal, I'm no shrinking violet :rotfl:

    Popla my appeal

    POPLA REF XXXXXXXXXXXXXXXX

    CAR REG XXXXXXXX

    As the registered keeper of the car mentioned above I would like to appeal the parking charge notice issued by Parking Eye Ltd for a number of reasons outlined below:

    1. The charge is punitive and is not a genuine pre-estimate of loss.
    2. Parking Eye Ltd has no contractual authority.
    3. Keeper Liability Requirements and the Protection of Freedom Act.
    4. ANPR Accuracy and Compliance.
    5. No Contract was entered into between Parking Eye and the Driver or Registered keeper.
    6. Unfair terms of contract.
    7. Non BPA /MSA compliant signage.


    1.The charge is punitive and is not a genuine pre-estimate of loss.

    Judging by the wording of the parking charge notice this is clearly an attempt to enforce this charge under paragraph B 19.5 of the BPA Code of Practice in which it states that this must be a genuine pre-estimate of the loss that may have incurred. Whilst the car park is free for 2 hours and to park for the day is just £10 ,they are asking for a charge of £100 for this penalty. This alone is far more than the cost to the landowner could have lost for the time my car was said to have parked there. The charge is clearly punitive and disproportionate to any alleged breach of contract.
    Nor is the charge 'commercially justified'. If parking eye cite 'Parking Eye v Beavis & Wardley' Mr Beavis is challenging that small claim decision in the Court of Appeal, as HHJ Moloney fully expected at the time. In addition, POPLA Assessor Chris Adamson recently failed to validate a VCS alleged 'loss statement', recording that:

    ''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''

    Furthermore as the operator is clearly seeking to impose a penalty, it is their sole responsibility to provide a full breakdown as proof of the pre-estimated loss of £100. As of this point they have made no effort to provide me with a breakdown of the costs they allegedly incurred. To justify the charge of £100, the appellant requires Parking Eye Ltd to back up their decision by providing POPLA with a full and detailed financial breakdown of the pre-estimated costs they have suffered as a result of the charge in question, flowing from an initial loss, which in a free car park is zero! I would like to add that normal costs of running their business (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as ParkingEye Ltd would need to pay these irrespective of this alleged charge. Parking enforcement costs cannot possibly represent any loss resulting from an alleged breach of contract, as these costs would need to be paid whether the breach had happened or not .

    A recent Popla appeal was allowed for the following reason

    'Considering the evidence before me, I find that the operator has not provided evidence of an initial loss, which is a loss incurred prior to enforcement action being taken, such as the loss of the parking fee in the case of a pay and display car park where no ticket was purchased. Once such a loss is shown, losses flowing from it may be claimed, but without such a loss that is not the case. Whilst the losses stated by the operator may well flow from a breach, and initial loss must be shown in order to claim costs in respect of them. As an initial loss must be shown in order for a charge to constitute a genuine pre-estimate of loss, the operator has failed to show that the charge is a genuine pre-estimate of loss. Therefore the charge notice is invalid. Having found this, I am not required to consider any further issues raised by the appellant.'

    Accordingly, this appeal must be allowed.

    Christopher Monk
    Assessor

    In summary not only is the £100 charge completely disproportionate meaning that it is punitive and is breaking the Unfair Contract Terms Act 1997, but there can be no loss shown at all as no pre-estimate charge has been put together making the charge unenforceable against the appellant or the driver.

    The appellant is not liable for any charge.

    2. ParkingEye Ltd has no contractual authority.

    In the notices they have sent the appellant, Parking Eye have not shown any evidence that they have any proprietary interest in the car park/land in question, they do not have the necessary legal right to act. Also they have not provided the appellant with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. The appellant requires proof of a full unredacted copy of the contract in force at the time of the alleged parking event. (a statement saying someone has seen the contract is not enough). The contract needs to state that ParkingEye Ltd are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. The appellant clarifies that this should be an actual copy and not just a document that claims a contract/agreement exists.

    A recent successful Popla appeal states :-

    'The Appellant has asked to see proof that the Operator has the authority to issue parking charges. The Operator has failed to provide a copy of the contract between themselves and the landowner to show that they have the authority to issue parking charge notices and therefore I have no evidence before me to refute the Appellant’s submission. The onus is on the Operator to prove their case against the Appellant and on this occasion they have not done so.
    Accordingly, this appeal must be allowed.'
    Nozir Uddin
    Assessor

    3. Keeper Liability Requirements and the Protection of Freedom Act

    As keeper of the vehicle, the appellant declines, as is my right, to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was ,the appellant submits that he is not liable to any charge. In regards to the notices the appellant has received, Parking Eye has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

    The appellant would like to point out that Schedule 4 paragraph 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver). In their parking charge notice letter at no point did they actually invite the appellant as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact the appellant is under no legal obligation to do so). The wording of the PCN actually makes it sound like The appellant has little choice but to give up the driver and does not actually state the choice to pay it himself.

    A recent successful Popla appeal decision stated :-

    'As the appellant has at no point admitted to being the driver of the vehicle and no evidence of this has been provided, in order for the appellant to be liable for the charge the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with. One of these requirements is the issue of a ‘notice to keeper’ compliant with certain provisions. In these circumstances, these provisions are found in paragraph 9 of Schedule 4 of the Act. The operator must produce evidence that this has occurred regardless of whether the issue is raised by the appellant, as the liability is not based in the law of contract but is created by the statute. As the notice to keeper issued by the operator appears not to comply with sub-paragraph 2(b) as it does not “inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.” The fact that some or all of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the notice to keeper is compliant. As the notice to keeper is not valid, I cannot find that the charge notice is enforceable against the appellant. In the light of this, I am not required to consider the appellant’s substantive case.'

    I would also like to point out that the Act stipulates that the parking company must provide me with the period the car was parked. I would strongly argue that the format of evidence provided (photographs from a number plate recognition camera showing the vehicle enter and leave the car park) is not actually valid or sufficient on its own as a form of evidence. Parking Eye should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do so.

    4. ANPR Accuracy and Compliance

    The appellant requires 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 the appellants vehicle entering and exiting at specific times. It is vital that Parking Eye 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 in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from 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, the appellant requires that ParkingEye Ltd in this case shows 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 in the Fox-Jones case and I put this Operator to strict proof to the contrary.

    In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
    ''21 Automatic number plate recognition (ANPR)
    21.1 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.
    21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
    21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
    21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
    • be registered with the Information Commissioner
    • keep to the Data Protection Act
    • follow the DVLA requirements concerning the data
    • follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

    At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when the appellant believes it is not the case). This Operator is put to strict proof to the contrary.

    5. No Contract was entered into between Parking Eye and the Driver or Registered keeper

    The registered keeper replicated the visit to Gordano Services and would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. The appellant requires the operator to provide contemporaneous photographic evidence as proof to the contrary. Parking Eye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed.
    It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. The appellant requires ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. The appellant would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

    Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

    The appellant requests that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

    6. Unfair terms of contract

    Although there is no contract between Parking Eye and the driver (or the appellant) if there were, then I would ask POPLA to consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply. I have highlighted the following specifically as I believe they apply directly to this case:

    2. (1) (e) Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

    5. (1) 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.

    5. (2) 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.

    The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one ParkingEye Ltd are suggesting. A company such as Parking Eye needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

    7. Non BPA /MSA compliant signage

    Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance, the parking space used, or exits to any of the shops.

    The appellant contends that the signs and any core parking terms Parking Eye are relying upon, were too small for any driver to see, read or understand. The appellant requests that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. The appellant contends that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

    SIGNAGE NON-COMPLIANT WITH MOTORWAY SERVICE STATION REQUIREMENTS
    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 for Transport (DfT), published a policy on the provision of roadside facilities on its 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 be levied 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 the appellant therefore requires 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.”

    The appellant requires Parking Eye to show proof to the POPLA adjudicator 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 Parking Eye'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.

    The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

    The Operator needs to show evidence and signage map/photos on this point - specifically showing the height and lighting of the signs and 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 the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. The appellant believes the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. The appellant requires the operator to provide photographic evidence that proves otherwise.

    As a POPLA assessor has said previously in an adjudication
    “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

    The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.



    The appellant contends that the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.

    I respectfully request that this parking charge notice appeal be allowed and await your decision.

    The appellant
  • Lost a few more I/my that was missed so if no objections over the weekend will send off.
    Thanks again everyone for their help, time to spend the weekend as it should be - not dealing with ppc rip off merchants :beer:

    Popla my appeal

    POPLA REF XXXXXXXXXXXXXXXX

    CAR REG XXXXXXXX

    As the registered keeper of the car mentioned above I would like to appeal the parking charge notice issued by Parking Eye Ltd for a number of reasons outlined below:

    1. The charge is punitive and is not a genuine pre-estimate of loss.
    2. Parking Eye Ltd has no contractual authority.
    3. Keeper Liability Requirements and the Protection of Freedom Act.
    4. ANPR Accuracy and Compliance.
    5. No Contract was entered into between Parking Eye and the Driver or Registered keeper.
    6. Unfair terms of contract.
    7. Non BPA /MSA compliant signage.


    1.The charge is punitive and is not a genuine pre-estimate of loss.

    Judging by the wording of the parking charge notice this is clearly an attempt to enforce this charge under paragraph B 19.5 of the BPA Code of Practice in which it states that this must be a genuine pre-estimate of the loss that may have incurred. Whilst the car park is free for 2 hours and to park for the day is just £10 ,they are asking for a charge of £100 for this penalty. This alone is far more than the cost to the landowner could have lost for the time my car was said to have parked there. The charge is clearly punitive and disproportionate to any alleged breach of contract.
    Nor is the charge 'commercially justified'. If parking eye cite 'Parking Eye v Beavis & Wardley' Mr Beavis is challenging that small claim decision in the Court of Appeal, as HHJ Moloney fully expected at the time. In addition, POPLA Assessor Chris Adamson recently failed to validate a VCS alleged 'loss statement', recording that:

    ''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''

    Furthermore as the operator is clearly seeking to impose a penalty, it is their sole responsibility to provide a full breakdown as proof of the pre-estimated loss of £100. As of this point they have made no effort to provide me with a breakdown of the costs they allegedly incurred. To justify the charge of £100, the appellant requires Parking Eye Ltd to back up their decision by providing POPLA with a full and detailed financial breakdown of the pre-estimated costs they have suffered as a result of the charge in question, flowing from an initial loss, which in a free car park is zero! I would like to add that normal costs of running their business (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as ParkingEye Ltd would need to pay these irrespective of this alleged charge. Parking enforcement costs cannot possibly represent any loss resulting from an alleged breach of contract, as these costs would need to be paid whether the breach had happened or not .

    A recent Popla appeal was allowed for the following reason

    'Considering the evidence before me, I find that the operator has not provided evidence of an initial loss, which is a loss incurred prior to enforcement action being taken, such as the loss of the parking fee in the case of a pay and display car park where no ticket was purchased. Once such a loss is shown, losses flowing from it may be claimed, but without such a loss that is not the case. Whilst the losses stated by the operator may well flow from a breach, and initial loss must be shown in order to claim costs in respect of them. As an initial loss must be shown in order for a charge to constitute a genuine pre-estimate of loss, the operator has failed to show that the charge is a genuine pre-estimate of loss. Therefore the charge notice is invalid. Having found this, I am not required to consider any further issues raised by the appellant.'

    Accordingly, this appeal must be allowed.

    Christopher Monk
    Assessor

    In summary not only is the £100 charge completely disproportionate meaning that it is punitive and is breaking the Unfair Contract Terms Act 1997, but there can be no loss shown at all as no pre-estimate charge has been put together making the charge unenforceable against the appellant or the driver.

    The appellant is not liable for any charge.

    2. ParkingEye Ltd has no contractual authority.

    In the notices they have sent the appellant, Parking Eye have not shown any evidence that they have any proprietary interest in the car park/land in question, they do not have the necessary legal right to act. Also they have not provided the appellant with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. The Appellant can only assume instead, they are agents for the owner/legal occupier instead. The appellant submits therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. The appellant requires proof of a full unredacted copy of the contract in force at the time of the alleged parking event. (a statement saying someone has seen the contract is not enough). The contract needs to state that ParkingEye Ltd are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. The appellant clarifies that this should be an actual copy and not just a document that claims a contract/agreement exists.

    A recent successful Popla appeal states :-

    'The Appellant has asked to see proof that the Operator has the authority to issue parking charges. The Operator has failed to provide a copy of the contract between themselves and the landowner to show that they have the authority to issue parking charge notices and therefore I have no evidence before me to refute the Appellant’s submission. The onus is on the Operator to prove their case against the Appellant and on this occasion they have not done so.
    Accordingly, this appeal must be allowed.'
    Nozir Uddin
    Assessor

    3. Keeper Liability Requirements and the Protection of Freedom Act

    As keeper of the vehicle, the appellant declines, as is my right, to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was ,the appellant submits that he is not liable to any charge. In regards to the notices the appellant has received, Parking Eye has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

    The appellant would like to point out that Schedule 4 paragraph 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver). In their parking charge notice letter at no point did they actually invite the appellant as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact the appellant is under no legal obligation to do so). The wording of the PCN actually makes it sound like The appellant has little choice but to give up the driver and does not actually state the choice to pay it himself.

    A recent successful Popla appeal decision stated :-

    'As the appellant has at no point admitted to being the driver of the vehicle and no evidence of this has been provided, in order for the appellant to be liable for the charge the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with. One of these requirements is the issue of a ‘notice to keeper’ compliant with certain provisions. In these circumstances, these provisions are found in paragraph 9 of Schedule 4 of the Act. The operator must produce evidence that this has occurred regardless of whether the issue is raised by the appellant, as the liability is not based in the law of contract but is created by the statute. As the notice to keeper issued by the operator appears not to comply with sub-paragraph 2(b) as it does not “inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.” The fact that some or all of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the notice to keeper is compliant. As the notice to keeper is not valid, I cannot find that the charge notice is enforceable against the appellant. In the light of this, I am not required to consider the appellant’s substantive case.'

    The Appellant would also like to point out that the Act stipulates that the parking company must provide the period the car was parked. The appellant would strongly argue that the format of evidence provided (photographs from a number plate recognition camera showing the vehicle enter and leave the car park) is not actually valid or sufficient on its own as a form of evidence. Parking Eye should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do so.

    4. ANPR Accuracy and Compliance

    The appellant requires 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 the appellants vehicle entering and exiting at specific times. It is vital that Parking Eye 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 in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from 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, the appellant requires that ParkingEye Ltd in this case shows evidence to rebut this point: The appellant suggests that in the case of the 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 the Appellant contends that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and so puts this Operator to strict proof to the contrary.

    In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
    ''21 Automatic number plate recognition (ANPR)
    21.1 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.
    21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
    21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
    21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
    • be registered with the Information Commissioner
    • keep to the Data Protection Act
    • follow the DVLA requirements concerning the data
    • follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

    At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when the appellant believes it is not the case). This Operator is put to strict proof to the contrary.

    5. No Contract was entered into between Parking Eye and the Driver or Registered keeper

    The registered keeper replicated the visit to Gordano Services and would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. The appellant requires the operator to provide contemporaneous photographic evidence as proof to the contrary. Parking Eye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed.
    It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. The appellant requires ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. The appellant would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

    Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

    The appellant requests that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

    6. Unfair terms of contract

    Although there is no contract between Parking Eye and the driver (or the appellant) if there were, then the Appellant would ask POPLA to consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply. The appellant has highlighted the following specifically as he believes they apply directly to this case:

    2. (1) (e) Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

    5. (1) 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.

    5. (2) 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.

    The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one ParkingEye Ltd are suggesting. A company such as Parking Eye needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

    7. Non BPA /MSA compliant signage

    Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance, the parking space used, or exits to any of the shops.

    The appellant contends that the signs and any core parking terms Parking Eye are relying upon, were too small for any driver to see, read or understand. The appellant requests that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. The appellant contends that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

    SIGNAGE NON-COMPLIANT WITH MOTORWAY SERVICE STATION REQUIREMENTS
    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 for Transport (DfT), published a policy on the provision of roadside facilities on its 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 be levied 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 the appellant therefore requires 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.”

    The appellant requires Parking Eye to show proof to the POPLA adjudicator 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 Parking Eye'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.

    The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

    The Operator needs to show evidence and signage map/photos on this point - specifically showing the height and lighting of the signs and 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 the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. The appellant believes the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. The appellant requires the operator to provide photographic evidence that proves otherwise.

    As a POPLA assessor has said previously in an adjudication
    “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

    The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that the appellant and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.



    The appellant contends that the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.

    The Appellant respectfully requests that this parking charge notice appeal be allowed and await your decision.

    The Appellant
  • Last check before I spoil the 100% success :) sending the application tonight so would appreciate someone confirming the above appeal is ok.
    Thanks
    No-i
  • RedxRedx Forumite
    36.9K Posts
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
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    I thought my thanks in the post did that, ie:- it looked good to me so I thanked you for it , plus the lack of replies giving further critique should have told you something

    PE dont even challenge popla appeals now
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
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