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Parking Eye Appeal Refused, now POPLA
FFairy
Posts: 13 Forumite
Hi, hope it’s OK to post a new thread I have read the sticky and various other threads but needed some advice...
A PCN by Parking Eye was issued to a family member in April for a short overstay in Ilford retail park, I am dealing with the paperwork.
It was after 7pm, the driver was not using the retail stores (so appeal to retailer to cancel charge did not seem beneficial), but parked in the car park because its short walk to a nearby restaurant (which does recommend customers use this carpark). Parking is free for 2 hours, after which you are required to pay. The over stay was by 12 minutes, as captured by the cameras.
The registered keeper has been issued the PCN (£100 down to £60 if I'd paid early), I appealed to Parking Eye using the template from the sticky and got a refusal letter with POPLA Ref, giving another 14 days at the discounted rate. The relevant part of the refusal seems to be: Whilst the Consumer Contracts Regs 2013 apply to contracts which were entered into after June 2013, this type of parking contract is excluded from the regulations due to the “automated commercial premises” exemption. As a result, the right to cancel the Parking Contract you entered into on 10th April 2015 does not apply.
I propose using the following POPLA appeal template from a recent thread, would this be OK according to recent decisions or do I need something more?
Re: Parking Eye PCN: xxxxxxxxxx
POPLA Code:
I am the registered 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) No standing or authority to pursue charges nor form contracts with drivers
3) The signage was inadequate so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate
1) No genuine pre-estimate of loss
This car park is a free shopping car park limited to 2 hours parking . It is alleged I overstayed in this car park by the total time of 12minutes. The adjoining shops were all closed and the car park was empty as a result, therefore there can be no loss of a result of this parking event.
In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.
The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was almost empty on arrival and when the driver left.
The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.
The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):
The British Parking Association Code of Practice uses the word 'MUST':
"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.
This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
2) No standing or authority to pursue charges nor form contracts with drivers
On receipt of the PCN I visited the adjoining shops to establish who owned the land and if it would be possible to speak with them, I was told by the manager of one of the shops, Farm Foods, that following a high amount of complaints the land owner and their landlord had instructed Parking Eye to remove signage from the car park and they would no longer be managing it.
I therefore 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 did 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 or was in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). In any case, ParkingEye's witness statements have been exposed as photocopy templates from clients who may well have no knowledge of any individual parking event and the signatory may never even have seen the contract.
3) The signage was inadequate so there was no valid contract formed
The occupants of the car recall seeing no signs on entrance to the car park. The date and time of the alleged incident would also have meant daylight would have been fast fading meaning that any signs in the car park may have been difficult to see and read. I have already alluded to returning to the car park following receipt of the PCN and all signs having been removed so I am unable to check on the contract Parking Eye claim to have been formed by themselves and the driver.
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 & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit - and it can be seen from ParkingEye's own photos of an isolated numberplate in the dark, that the entrance (where signs must be clear) was in fact pitch black. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied
4) The ANPR system is unreliable and neither synchronised nor accurate
If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 12 minutes more than the free time allocated. And yet their evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening.
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. It was approaching darkness and if there was such a sign at all then it was neither lit nor prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.
In addition I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable as the evidence in the Fox-Jones case.
I request that my appeal is allowed.
Yours faithfully,
I am well within the 28 days to appeal to POPLA but would appreciate advice asap.
Many thanks!
A PCN by Parking Eye was issued to a family member in April for a short overstay in Ilford retail park, I am dealing with the paperwork.
It was after 7pm, the driver was not using the retail stores (so appeal to retailer to cancel charge did not seem beneficial), but parked in the car park because its short walk to a nearby restaurant (which does recommend customers use this carpark). Parking is free for 2 hours, after which you are required to pay. The over stay was by 12 minutes, as captured by the cameras.
The registered keeper has been issued the PCN (£100 down to £60 if I'd paid early), I appealed to Parking Eye using the template from the sticky and got a refusal letter with POPLA Ref, giving another 14 days at the discounted rate. The relevant part of the refusal seems to be: Whilst the Consumer Contracts Regs 2013 apply to contracts which were entered into after June 2013, this type of parking contract is excluded from the regulations due to the “automated commercial premises” exemption. As a result, the right to cancel the Parking Contract you entered into on 10th April 2015 does not apply.
I propose using the following POPLA appeal template from a recent thread, would this be OK according to recent decisions or do I need something more?
Re: Parking Eye PCN: xxxxxxxxxx
POPLA Code:
I am the registered 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) No standing or authority to pursue charges nor form contracts with drivers
3) The signage was inadequate so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate
1) No genuine pre-estimate of loss
This car park is a free shopping car park limited to 2 hours parking . It is alleged I overstayed in this car park by the total time of 12minutes. The adjoining shops were all closed and the car park was empty as a result, therefore there can be no loss of a result of this parking event.
In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.
The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was almost empty on arrival and when the driver left.
The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.
The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):
The British Parking Association Code of Practice uses the word 'MUST':
"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.
This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
2) No standing or authority to pursue charges nor form contracts with drivers
On receipt of the PCN I visited the adjoining shops to establish who owned the land and if it would be possible to speak with them, I was told by the manager of one of the shops, Farm Foods, that following a high amount of complaints the land owner and their landlord had instructed Parking Eye to remove signage from the car park and they would no longer be managing it.
I therefore 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 did 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 or was in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). In any case, ParkingEye's witness statements have been exposed as photocopy templates from clients who may well have no knowledge of any individual parking event and the signatory may never even have seen the contract.
3) The signage was inadequate so there was no valid contract formed
The occupants of the car recall seeing no signs on entrance to the car park. The date and time of the alleged incident would also have meant daylight would have been fast fading meaning that any signs in the car park may have been difficult to see and read. I have already alluded to returning to the car park following receipt of the PCN and all signs having been removed so I am unable to check on the contract Parking Eye claim to have been formed by themselves and the driver.
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 & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit - and it can be seen from ParkingEye's own photos of an isolated numberplate in the dark, that the entrance (where signs must be clear) was in fact pitch black. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied
4) The ANPR system is unreliable and neither synchronised nor accurate
If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 12 minutes more than the free time allocated. And yet their evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening.
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. It was approaching darkness and if there was such a sign at all then it was neither lit nor prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.
In addition I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable as the evidence in the Fox-Jones case.
I request that my appeal is allowed.
Yours faithfully,
I am well within the 28 days to appeal to POPLA but would appreciate advice asap.
Many thanks!
0
Comments
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I see you fell into the I trap
it should say "the driver" , not "I"This car park is a free shopping car park limited to 2 hours parking . It is alleged I overstayed in this car park by the total time of 12minutes.
it should also be stated that the time for parking WAS paid for and that the cameras do not monitor the parking time, so entering and exiting and reading the notices do not constitute "parking time"0 -
Many thanks for a super-qiuck response, much appreciated. I will correct the error, I've noticed a couple of other very minor errors in the template I've used that need fixing. Too much reading of threads/templates/legislation has given me square eyes!0
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In one place you say It is a free car park. in another you say that the first two hours is free and there is a facility to buy extra time, which is it?
You also quote Beavis, commercial justification of a penalty only applies, inter alia, in totally free car parks, in this car park PE do not therefore want to deter people from paring for a longer period as long as they pay for it. I wonder how man other anomalies there are.
Also, you question the lighting of the signs, but you say that you parked at 7pm in April, was it dark?
It is a long complicated and wide ranging appeal, and I am wondering if you fully understood what your were writing, or just cut and pasted.You never know how far you can go until you go too far.0 -
I have amended the first para under 1) to now read:
This car park is a free shopping car park limited to 2 hours parking. It is alleged the driver overstayed in this car park, however parking was paid for. The driver informs me that the car was parked correctly in a designated parking space and did not contravene any parking regulations; the car park had a number of unoccupied spaces; therefore there can be no legitimate claim of loss of a result of this parking event.
In this case, the £100 charge being asked for, by far exceeds the cost to the landowner as parking is free, therefore there is no justified loss by the landowner for the 12 minutes the driver allegedly over stayed. I also note that the cameras do not monitor the time taken to park the vehicle, so entering and exiting the car park and reading the notices do not constitute "parking time"
It is clear that this charge is a penalty as parking eye, or the landowner will not make any money out of the contract unless drivers ‘overstay’.
Hope this covers everything, also I am not terribly familiar with the car park signage etc and wondering whether I should check it out properly to avoid contradicting myself, before formally submitting the appeal to POPLA.0 -
@ TheDeep, sorry I hadn't refreshed and seen your reply. The car park is free for the first 2 hours, after which you are required to pay. The driver did not realise they would overstay the free period and therefore didn't pay in advance.
Just realised I've contradicted myself above in the above post as well!
Would you recommend I remove references to Beavis, as it does not seem to apply?
I believe it was twilight/getting dark at 7 pm, and totally dark when exiting.
Honestly, I read many posts in relation to these appeals, tried to match up the situations and use the most relevant appeal template with some minor amendments but it was largely copy/paste.0 -
I wandered on foot through a PE car park today and having read the 2014 POPLA annual report some hours earlier I noticed the signage does not mention the discount period for early payment as per the BPA code of practice para 19.7.
Discount of parking charge
Paragraph 19.7 of the BPA Code provides that if prompt payment is made
(defined as 14 days from the issue of the parking charge notice) you must offer
a reduced payment to reflect your reduced costs in collecting the charge. This
reduction in cost should be by at least 40% of the full charge.
Page 11
The discount should clearly be offered on the face of the parking charge notice
as well as relevant signage at the location.
It is, of course, a matter for each individual operator whether to reoffer the
discount, either generally or in specific cases, at the time of the rejection of
representations. However, in the statutory schemes, many enforcement authorities
have found that motorists do take advantage of such an offer, if the reason for
the rejection has been fully and clearly explained. This obviously means that there
is no appeal, to the advantage of both parties.
Or is it in the small print at the bottom that nobody of my age can read!
Perhaps this is a small point which the adjudicators might pick up on.REVENGE IS A DISH BETTER SERVED COLD0 -
@ TheDeep, sorry I hadn't refreshed and seen your reply. The car park is free for the first 2 hours, after which you are required to pay. The driver did not realise they would overstay the free period and therefore didn't pay in advance.
Just realised I've contradicted myself above in the above post as well!
Would you recommend I remove references to Beavis, as it does not seem to apply?
I believe it was twilight/getting dark at 7 pm, and totally dark when exiting.
Honestly, I read many posts in relation to these appeals, tried to match up the situations and use the most relevant appeal template with some minor amendments but it was largely copy/paste.
these are the dangers of just copying and pasting without checking and amending
those are not templates, they are examples, that need altering to suit
beavis parked on a car park that was free for 2 hours, then overstayed, so this seems similar to me, especially as the driver did not pay a penny for parking there, so I would keep the details in but add that its going to be appealed yet again in the Supreme Court
as for signage, its your job to allege it is inadequate, not lit properly etc and their job to prove otherwise to popla, but keep it real, dont allege they are not lit if they are, dont allege they cannot be read in the dark if its still light
any person is allowed time to enter, park , read the signs , come back later, and time to exit the car park
anpr does not monitor parking time, only entry and exit, so if we assume 5 minutes to enter and park, 5 minutes to read the signs, 5 minutes to exit the car park , then the time taken is not unreasonable0 -
Hi FFairy,
This is quite an old POPLA now. It is out of date in places (some I've highlighted in quotes box below - there may be more) also certain details don't seem to relate to your specific situation.
Take your time - look at more current POPLA's
You can find those by
- looking at the POPLA decisions thread (start last page and work backwards)
- Using the Search the Forum function - using terms such as Parking Eye POPLA, the specific location can also sometimes find POPLA's written for that car park.
I would also suggest checking their Ntk against POFA 2012 Schedule 4 paragraph 9 - can find it by googling it - for any non-compliance issues - include a 5th challenge on Non compliant Ntk therefore no keeper liability - if you find any issues.
HTH[STRIKE]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.''
[/STRIKE]
^^^^ out of date ^^^^^
see BPA Code of Practice for Parking on Private Land 2012 - Version 5, October 2014 on BPA web site for current version of 19.5
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:
^^^^ Also out of date ^^^^^
Beavis appeal was lost but he has now been given leave to appeal to the Supreme Court.
Suggest familiarising yourself with the current situation and how to distinguish your case from the Beavis car park.
2) No standing or authority to pursue charges nor form contracts with drivers
On receipt of the PCN I visited the adjoining shops to establish who owned the land and if it would be possible to speak with them, I was told by the manager of one of the shops, Farm Foods, that following a high amount of complaints the land owner and their landlord had instructed Parking Eye to remove signage from the car park and they would no longer be managing it.
Does the above paragraph actually apply to your location or is it a hangover from the case of the original poster of this POPLA.0 -
I have great respect for Redx's advice but I have a different interpretation of, and opinion on, this point.beavis parked on a car park that was free for 2 hours, then overstayed, so this seems similar to me, especially as the driver did not pay a penny for parking there, so I would keep the details in but add that its going to be appealed yet again in the Supreme Court
I believe you may have an argument that can distinguish your case from the Beavis one - in the car park in that case it was totally free for a limited time and there was no facility to pay for any extra time - this was not a financial contract between PE and the driver - the charge was purely to deter people from overstaying and that is the basis of PE's commercial justification argument.
But it appears the car park for this PCN was in effect a P&D car park offering up to two hours free with pre-payment of a tariff required if planning to park for longer than that (also the means to pay were provided) - this is a financial contract (even though no payment was made - it should have been and PE would have been happy for the driver to stay for longer if payment had been made.
It is my understanding that on a P&D car park the maximum owed would be the fee that should have been paid for extra time and the charge levied should still be a genuine pre-estimate of loss.
Also will depend on what the wording on the NtK actually says the charge was issued for but even if it says something like "overstaying a free time period" it could be argued that it was actually for failing to pay for the extra time.0 -
Many thanks for all the replies, I have taken them on board and now see where my POPLA appeal required amendments to ensure it applied specifically to the situation/car park in question. I have included some hopefully relevant POFA challenges, and note the NtK refers to "by either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted.." I believe I have made the necessary changes/rewrites, would be grateful for any further thoughts?
Also, I've searched to find how/if I should refer to Beavis at all, but really can't figure out what (if anything) I should say, should I just delete those 2 paras referring to Beavis judgement, as I cannot find anything more relevant to use?
Re: Parking Eye PCN: xxxxxxxxxx
POPLA Code:
I am the registered 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) 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. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
1) No genuine pre-estimate of loss
This car park is limited to 2 hours of free parking; a ticket must be purchased to remaining beyond 2 hours. The driver is alleged to have remained in the car park for 2 hours and 12 minutes. The driver informs me that the car was parked correctly in a designated parking space and did not contravene any parking regulations; the car park had a number of unoccupied spaces; therefore there can be no legitimate claim of loss of a result of this parking event.
In this case, the £100 charge being asked for, by far exceeds the cost to the landowner as parking is free for 2 hours, therefore there is no justified loss by the landowner for the 12 minutes the driver allegedly over stayed. I also note that the cameras do not monitor the time taken to park the vehicle, so entering and exiting the car park and reading the notices do not constitute "parking time".
It is clear that this charge is a penalty as Parking Eye, or the landowner will not make any money out of the contract unless drivers ‘overstay’.
In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.
The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park had a number of available parking spaces.
The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.
The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):
The British Parking Association Code of Practice uses the word 'MUST':
"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.''
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Supreme Court by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.
This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
2) No standing or authority to pursue charges nor form contracts with drivers
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. I contend that they merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. Authority to merely 'issue tickets' is not the same authority as a right to form contracts in their own right, with visiting drivers. As a commercial site agent acting under an agency agreement 'on behalf of' the principal, ParkingEye has negative responsibility and no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA CoP.
I put ParkingEye to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that ParkingEye can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows ParkingEye to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that ParkingEye can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.
3) The signage was inadequate so there was no valid contract formed
The occupants of the car recall seeing no signs on entrance to the car park. The date and time of the alleged incident would also have meant daylight would have been fast fading meaning that any signs in the car park may have been difficult to see and read.
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 & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit - and it can be seen from ParkingEye's own photos of an isolated numberplate at dusk, that the entrance (where signs must be clear) was in fact very dark. 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
4) The ANPR system is unreliable and neither synchronised nor accurate
If ParkingEye's ANPR records are completely reliable (which I contest) then this Operator claims the car was parked for around 12 minutes more than the free time allocated. And yet their evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening.
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. It was approaching darkness and if there was such a sign at all then it was neither lit nor prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.
In addition I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable as the evidence in the Fox-Jones case.
5. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
In order to pursue Keeper Liability under the POFA, ParkingEye must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the “Notice to Keeper” (‘NtK’) as per para. 9 Sch 4 of the Act.
The NTK fails due to the following reasons:
The following points (A)-(C) may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:
(A) The 'period of parking' is not 'specified', only the times the car was seen in traffic on arrival and on the final time it left that day, with a statement of ‘Time in Car Park’. It does not specify the period of parking as demanded under POFA 2012 paragraph 8 section 2 (a). Parking is a specific action and that is quite different from simply being in a car park. There's no evidence of parking at all.
(B) It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified). POFA requires that a NTK describes any 'outstanding' 'unpaid' charges which the driver owed as at a time not later than the DAY BEFORE the issue of the postal NTK. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the day the NTK was issued, because it only arises and could be described as 'unpaid', if at all, at/after the time of receipt of the NTK by the keeper. The inflated PCN amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff that the driver owed before the NTK was issued, to be stated - and that this is the only sum that can be pursued from a registered keeper.
(C) The NTK fails to show the arrangements for complaints and the geographical address of the client/landowner, since this Operator is an agent . This is a requirement for all consumer contracts since June 2014, in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regs 2013 and also a breach of the POFA not to include full details of such arrangements for complaints.
The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.
In this case the driver has not been identified so the charge has no legal basis to be enforced against me.
I request that my appeal is allowed.
Yours faithfully,0
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