Parking EYE POPLA Appeal

lee.1977

so this should read better:-


I am the Keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
3) No standing or authority to pursue charges nor form contracts with drivers
4) The signage was miss leading, using larger font to highlight “All day parking £4.50 5) The ANPR system is unreliable and neither synchronised nor accurate

1) No genuine pre-estimate of loss
This car park is Pay and Display and payment was made of £4.50 for the advertised "all day parking". However "All Day parking” is limited between 8 am & 6pm. By the information provided by Parking eye the vehicle exited the car park at X.XX pm. Overnight parking is charged at £5.50 from 6pm to 8am. So the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £5.50 at the most, The Keeper strictly asks that Parking eye prove that during the said 1 hour after 6pm, any new vehicle to enter would be unable to park due to the car park being full?, hence unable to park. Using the clock in clock out of vehicles and knowing the true car park capacity it would be identified if the car park was at the said time full, or spaces to be available. This point must be clarified due to leaving the car park at the alleged time, it was clearly empty. Due to the Keeper not with standing the full overnight use/charge, the £5.50 should be broken down to reflect the actual stay of 1 hour after 6pm. (£5.50 Divide by 14 Hours = 0.40 pence)

Redx

seems to be a lot missing there

but have ANPR as separate to signage

ps:- I gave you several links to suitable popla appeals that you could easily adapt and use the best points from them all

lee.1977

in its entirety working with said keeper:-

Re: ParkingEye PCN, reference code xxxxxx
POPLA Code:

I am the Keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
3) No standing or authority to pursue charges nor form contracts with drivers
4) The signage was miss leading, using larger font to highlight “All day parking £4.50

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

1) No genuine pre-estimate of loss
This car park is Pay and Display and payment was made of £4.50 for the advertised "all day parking". However "All Day parking” is limited between 8 am & 6pm. By the information provided by Parking eye the vehicle exited the car park at X.XX pm. Overnight parking is charged at £5.50 from 6pm to 8am. So the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £5.50 at the most, The Keeper strictly asks that Parking eye prove that during the said 1 hour after 6pm, any new vehicle to enter would be unable to park due to the car park being full?, hence unable to park. Using the clock in clock out of vehicles and knowing the true car park capacity it would be identified if the car park was at the said time full, or spaces to be available. This point must be clarified due to leaving the car park at the alleged time, it was clearly empty. Due to the Keeper not with standing the full overnight use/charge, the £5.50 should be broken down to reflect the actual stay of 1 hour after 6pm. (£5.50 Divide by 14 Hours = 0.40 pence)

In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated over and above the stated tariff, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.

The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor regard paid to any 'genuine pre-estimate of loss' prior to setting the parking charges at this site (before putting signs up and enforcing the charges, back when the contract was initially signed). I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement)would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges. The British Parking Association Code of Practice uses the word 'MUST': "19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''

This charge cannot be 'commercially justified' so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, due to be heard in February 2015). POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due'. The NTK fails to state the amount of the parking charge which remains unpaid (i.e. the fee or tariff which allegedly remained unpaid, not the inflated sum which this Operator also calls a 'parking charge'). As keeper I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was 'either/or' an overstay or failure to pay.

This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. As this operator has the technology to record car registrations, to collect and record payments and to take photos of cars arriving and leaving, they are certainly able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charge' arose.

These are the omissions:
''9(2)The notice must—
(b)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;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'

This so-called outstanding 'payment' is not quantified at all - I have had to guess what it might have been, by going back and checking the signs to find out the tariff and then had to interrogate the driver to find out more detail!

POPLA Assessor Matthew Shaw has stated that the validity of a NTK is fundamental to establishing liability for a parking charge. ''Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the omissionsof statutory wording, it was not properly given and so there is no keeper liability.

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

I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). In any case, ParkingEye's witness statements have been exposed as photocopy templates from clients who may well have no knowledge of any individual parking event and the signatory may never even have seen the contract.

4) The signage was not readable so there was no valid contract formed between ParkingEye and the driver
The only signs are up on poles (away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions). Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the ParkingEye signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer. Secondly upon entering the car park, there was a large banner which clearly stated “All day parking £4.50” In the time frames of the said offence and receipt of the PCN there has been an upgrade to the overall presentation of signage.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

5) The ANPR system is unreliable and neither synchronised nor accurate
ParkingEye's evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that evening.

As keeper I cannot discount that this may have been a double visit (possibly even with two drivers since the car has more than one family member who drives it). Or the driver may have driven in, realised it was pay and display then driven out to get change before returning (and of course the ANPR cameras show only the first and last visits). The BPA even mention this as an inherent problem with ANPR on their website; (link removed as not allowed in first post)
The BPA's view is: 'As with all new technology, there are issues associated with its use:
a) Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Even if an Operator shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All footage would have to be checked and this Operator will be unable to refute the double visit possibility since they don't bother to record continuous footage. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.

Further, this Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored and used. I say that Parking Eye have failed to clearly inform drivers about the cameras and how the data will be used and stored. . I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.

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

So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to refute all of my points about their flawed ANPR records.

I request that my appeal is allowed.

Yours faithfully,

Redx

looks ok to me

EXCEPT the section on Beavis

its now march 2015 and that case was heard 3 to 4 weeks ago in the Court Of Appeal, but the outcome has not been revealed yet (no verdict) - by the time POPLA consider this appeal the Beavis verdict will be known

so I would suggest you alter that part to reflect circumstances as of now , although its a shame there is no verdict for you to quote

if you now compare this to your first attempt in your other thread you will see why I dismissed that first attempt (chalk and cheese)

lee.1977

I Just have one more question, what personal information do I add in regards to full name, address, signature?.. or is the reference number and POPLA Number adequate.


Thank you for your help, it is highly appreciated...,

Redx

I suppose it depends if you are submitting online or by post (and you did not say)

no idea if you sign it on a postal one, but obviously you cannot sign it online (on their website) - if online you can attach the appeal as a word doc or a pdf

put all the other details on it, VRN , PCN , POPLA ref , name , address, email , etc

lee.1977

I've submitted to POPLA, so fingers crossed, I don't know how long the process takes, but I hope to come back soon and update on how I got on.., Thank you kindly for your help

Redx

5 to 8 weeks usually, although they are currently staying PE appeals until the Beavis result is known, so they should email you back (london councils) with an approximate date but its not set in stone