Parking Eye advice needed please

Milky_Bar_Kid

I got a PCN from Parking Eye for overstaying by 13 minutes on one of there camera operated car parks.


The car park was very busy on the day and we couldn't get a space for quite a while. Also the parent and child bays which we needed as we had our baby Granddaughter with us, were being misused by vehicles without children, this caused an even longer wait than if we were able to use a regular space.


We didn't time our stay until we were actually parked, is this correct or can Parking Eye time us from when we entered the car park, even though we were driving at the time of the photo and not parked.


Surely the contract we entered into with them was for them to provide a parking space and us using it.


Can someone clarify this point as I need to appeal to POPLA now as I have had no luck with my appeal to Parking Eye

Dee140157

Ok

Circumstances are largely irrelevant. The parent and child space issue especially since they have no legal validity whatsoever and are merely a customer courtesy.

You need to read post 3 of newbie thread and click through to the words "How to win at POPLA"

The timing did indeed start from the time you entered the car park, not from the time you were parked.

Read this thread
https://forums.moneysavingexpert.com/discussion/4923811

Milky_Bar_Kid

Why should this be different from Pay and Display, we wouldn't buy a ticket before we got the space on one of those would we

Dee140157

Do not stay under the illusion that you are dealing with an bunch of normal people who understand basic principles of fairness etc. This is PPC World. They write their own rules. You could be entering Narnia when you enter the car park, complete with the White Witch.

You have to fight the PPCs with the law, not circumstances.

Milky_Bar_Kid

I have also requested twice from Parking Eye a copy of the terms and conditions on the signage on this car park, as we were on holiday, so cant see for ourselves now. They have totally ignored these requests, so I cant check for myself whether or not I broke the T&Cs. Are they allowed to ignore my requests?

Redx

of course they are allowed to ignore your requests

they would have to send popla an evidence pack if they wish to defend themselves (but they probably wont)

and these evidence packs dont always contain the correct signage for the day in question, or even the correct car park

you could demand it in a popla appeal , or even in court , if in court they would be foolish to ignore such a request and they provide evidence packs in the pre court stages

Dee140157

As Redx said you need to keep your points together in one thread. It is much easier for us to advise.

You do not need to worry about signs for a PE car park. Just use the generic signage paragraph in the PE example in post 3 of the newbie thread. Remember the circumstances are largely irrelevant.

Ratting at us because you haven't much time left does not help. You have 28 days to go to POPLA. How many days have you got left?

Draft your appeal and put it on this thread, not on your other one. And then we can help.

Milky_Bar_Kid

Thanks for that, I have until next Wednesday, I am working on the appeal this morning and will post a draft on here ASAP

Milky_Bar_Kid

Okay, here is the draft for POPLA, any comments and advise are welcome

I am the registered keeper and Iwish to appeal a recent parking charge from ParkingEye. I submit the pointsbelow to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) The signage was inadequate so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate

5) Entering, Parking and Exiting with APNR


1) No genuine pre-estimate of loss



This carpark is a free shopping car park limited to 1.5 hours parking. It is alleged Ioverstayed in this car park by the total time of 13 minutes. For which a chargeof £85 has been invoiced.

Theentirety of the parking charge must be a genuine pre-estimate of loss in orderto be enforceable. As the PCN sum is massively inflated, I require ParkingEyeto submit a breakdown of how this sum was calculated prior to the parkingevent, as being capable of directly flowing from a minor alleged breach.

The Operator cannot reasonably claim a broad percentage of their entirebusiness running costs as they operate various different arrangements, somewhere they pay a landowner a huge amount akin to a 'fishing licence' to catchmotorists and some where they have pay and display, and others which are freecar parks. Given that ParkingEye charge the same lump sum for a 13 minuteoverstay as they would for 3 hours, and the same fixed charge applies to anyalleged contravention (whether serious/damaging or trifling), it is clear therehas been no regard paid to establishing that this charge is a genuinepre-estimate of loss caused by this incident in this car park.

The DfT Guidance and the BPA Code of Practice require that a parking charge foran alleged breach must be an estimate of losses flowing from the incident. ParkingEyecannot change this requirement so they have no option but to show POPLA theirgenuine pre-estimate of loss for this charge, not some subsequently penned'commercial justification' statement they may have devised afterwards (sincethis 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 abreach of contract or act of trespass, this charge must be based on the genuinepre-estimate of loss that you suffer.''

''In each case that I have seen from the higher courts,...it is made clear thata charge cannot be commercially justified where the dominant purpose of thecharge is to deter the other party from breach. This is most clearly stated inLordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly atparagraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v UnitedInternational Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states aclause should not be struck down as a penalty, “if the increase could in thecircumstances be explained as commercially justifiable, provided always thatits 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 theywould have been in had the contract been performed. It also seems that courtshave been unwilling to allow clauses designed to deter breach as thisundermines the binding nature of the initial promise made. Whilst the courtshave reasonably moved away from a strict interpretation of what constitutes agenuine pre-estimate of loss, recognising that in complex commercial situationsan accurate pre-estimate will not always be possible, nevertheless it remainsthat a charge for damages must be compensatory in nature rather thanpunitive.''


2) No standing or authority to pursuecharges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so theyhave no standing to make contracts with drivers in their own right, nor topursue charges for breach in their own name. In the absence of such title,ParkingEye must have assignment of rights from the landowner to pursue chargesfor breach in their own right, including at court level. This has not beenproduced by the operator in their rejection statement so I have no proof thatsuch a document is in existence. I contend that ParkingEye merely did hold abare licence to supply and maintain (non compliant) signs and to post out'tickets' as a deterrent. A commercial site agent for the true landholder hasno automatic standing nor authority in their own right which would meet thestrict requirements of section 7 of the BPA Code of Practice.

I therefore put ParkingEye to strict proof to provide POPLA and myself with anunredacted, contemporaneous copy of the contract between ParkingEye and thelandowner. This is required so that POPLA and myself can check that it allowsthis Operator to make contracts with drivers themselves and provides them withfull authority to pursue charges, including a right to pursue them in court intheir own name. Please note that a witness statement to the effect that acontract is or was in place will not be sufficient to provide sufficient detailof the contract terms (such as revenue sharing, genuine intentions of theserestrictions and charges, set amounts to charge for each stated contravention,etc.). In any case, ParkingEye's witness statements have been exposed asphotocopy templates from clients who may well have no knowledge of any individualparking event and the signatory may never even have seen the contract.


3) The signage was inadequate so therewas no valid contract formed

The occupants of the car recall seeing no signs on entrance to the car park. Theonly sign seen after parking was at least 10ft high and positioned in such away that a driver would not be able to safely see and read on entering the carpark. Due to the height, positioning and size of text it was also not possibleto read any alleged terms and conditions, only the 1.5 hours free parking waseasily readable.


Any photos supplied by ParkingEye to POPLA will no doubt show the signs withthe misleading aid of a close up camera & flash and the angle may well notshow how high the signs are. As such, I require ParkingEye to state the heightof each sign in their response and to show contemporaneous photo evidence ofthese signs. Unreadable signage breaches Appendix B of the BPA Code of Practicewhich states that terms on entrance signs must be clearly readable without adriver having to turn away from the road ahead. A Notice is not imported intothe contract unless brought home so prominently that the party 'must' haveknown of it and agreed terms beforehand. Nothing about this Operator's onerousinflated 'parking charges' was sufficiently prominent and it is clear that therequirements for forming a contract (i.e. consideration flowing between the twoparties, offer, acceptance and fairness and transparency of terms offered ingood faith) were not satisfied

4) The ANPR system is unreliable andneither synchronised nor accurate

If ParkingEye's ANPR records are completely reliable (which I contest) thenthis Operator claims the car was parked for around 13 minutes more than thefree time allocated. And yet their evidence shows no parking time.

This Operator is obliged to ensure their ANPR equipment is maintained asdescribed in paragraph 21.3 of the BPA Code of Practice and to have signsstating how the data will be stored/used. I say that Parking Eye have failed toclearly inform drivers about the cameras and what the data will be used for andhow it will be used and stored. If there was such a sign at all then it wasneither prominent or noticible, since the driver did not see it. I have alsoseen no evidence that they have complied with the other requirements in thatsection of the code in terms of ANPR logs and maintenance and I put thisOperator to strict proof of full ANPR compliance.

In addition I question the entire reliability of the system. I require thatParkingEye present records as to the dates and times of when the cameras atthis car park were checked, adjusted, calibrated, synchronised with the timerwhich stamps the photos and generally maintained to ensure the accuracy of thedates and times of any ANPR images. This is important because the entirety ofthe charge is founded on two images purporting to show my vehicle entering andexiting at specific times. It is vital that this Operator must produce evidencein response and explain to POPLA how their system differs (if at all) from theflawed ANPR system which was wholly responsible for the court loss recently inParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judgesaid the evidence from ParkingEye was fundamentally flawed because thesynchronisation of the camera pictures with the timer had been called intoquestion and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require ParkingEye toshow evidence to rebut the following assertion. I suggest that in the case ofmy vehicle being in this car park, a local camera took the image but a remoteserver added the time stamp. As the two are disconnected by the internet and donot have a common "time synchronisation system", there is no proofthat the time stamp added is actually the exact time of the image. The operatorappears to use WIFI which introduces a delay through buffering, so"live" is not really "live". Hence without a synchronisedtime stamp there is no evidence that the image is ever time stamped with anaccurate time. Therefore I contend that this ANPR "evidence" from thecameras in this car park is just as unreliable as the evidence in the Fox-Jonescase.

5) Entering, Parking andExiting with APNR



TheRespondent has produced insufficient evidence that my car was parked in breachof the stated terms and conditions. The Respondent uses ANPR camera’s atthe entrance/exit of the car park. The cameras only record the time that avehicle enters the car park and when it leaves, they do not record the actualparking event nor the point at which the contract to park is entered into.There are five separate actions involved here that relate to the parkingevent.


1. Driving into the car park. (Entry time recorded on ANPR).
2. Parking the car in an empty parking space.
3. Reading the terms and conditions of parking offered at the car park.
4. Acceptance of those terms and conditions by remaining at the car park.
5. Driving out of the parking space.
6. Driving out of the car park. (Exit time recorded on ANPR).


The BPA Ltd Code of Practice requires that parking operators can only rely onANPR evidence if it does so in a reasonable, consistent and transparent manner.Thus the Respondent has failed to recognise that it takes time to get in, finda space, consider the terms and conditions and then eventually to leave. TheRespondent’s claim for a parking charge for an alleged overstay based solely onthe entry and exit times recorded by ANPR cameras is therefore fatally flawedand cannot be relied upon, on a balance of probabilities, to prove itscase.

On the basis of all the points I have raised, this 'charge' fails to meet thestandards set out in paragraph 19 of the BPA CoP and also fails to comply withbasic contract law.

I respectfully request that this appeal be allowed.