POPLA Appeal for Ticket at Canvey Island Seafront

Umkomaas

Mrchillibeer wrote: »

Hi

My wife has just been ticketed at the same car park!

She went 11 mins over her time as she didn't allow for the time from parking, getting the kids into the play area and then getting a ticket. These people are evil!

If you don't mind if like to use the letter you have drafted above as my initial response. Do I send it back to them or onto someone else?

Thanks

Rhys

The above is an appeal to POPLA, the second stage appeal. Your first action is to appeal to the PPC - and a template is ready prepared for you in the NEWBIES FAQ sticky, situated near the top of the forum thread index, one page back from here.

The sticky gives you significant information to help you deal with your problem, so you must read and digest this first. Please note, there is no easy, no effort way out of this, so you do need to 'put in the miles' to get yourself out of this mess.

We are here to help and guide you (but not do it for you), so, after reading, digesting and understanding the sticky, if there's anything more you need clarification on, please start a new thread of your own (forum rules - one case, one thread - which make sense, to prevent advice getting mixed up between, potentially, multiple posters).

Please don't reply on this thread.

bucklag

Hi all. I received this from POPLA today.




Dear Gary





Your parking charge Appeal against Parking Eye Ltd.





In order to assess your Appeal fully we need some further information. Please let us know:





“The Supreme Court has now issued its decision in relation to ParkingEye-Vs-Beavis.
As previously advised, POPLA placed this appeal on hold until we had considered our position in relation to this.
We asked parking operators for their responses first, so we were able to share them with appellants. The parking operator provided the following/attached additional comments.
n respect of the enforceability of the Parking Charge, ParkingEye relies upon the Supreme Court decision in the matter of ParkingEye v. Beavis [2015] UKSC 67. This decision, handed down on 4th November 2015, reaffirms the first instance decision of HHJ Moloney QC [2014] and the Court of Appeal decision [2015] EWCA Civ 402. In reaffirming the findings of the Court of Appeal, the Supreme Court considered the Defendant’s submission that it would be proper to consider the Parking Charge both a penalty and unfair, but six of the seven Justices on the panel agreed with the findings of the lower courts, dismissing the Defendant’s appeal. At paragraphs 94-98, Lord Neuberger and Lord Sumption conclude that, “[…] the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. […] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available. These two objectives appear to us to be perfectly reasonable….”
Please provide your comments or additional evidence within seven days as responses after this point will not be considered.
We look forward to hearing from you shortly.





Please enter this information onto the portal using the log in details that were provided previously.





We need to receive this information within seven days of the date of this correspondence in order to include it as part of the assessment of the Appeal. Anything that is provided after this time may not be considered as part of the assessment and the decision will be made based on what has already been received.




Not really sure how I should reply.


At a previous stage Parking Eye should have submitted evidence to myself and POPLA, I certainly never received any nor is there anything attached on my appeal page with POPLA so I do not see how this is going any further anyway, but would like some advice on how I should reply to the above.


Thank in advance.


Gary

Coupon-mad

You absolutely MUST email POPLA back and tell them you never received the evidence so ask that your case is put on hold. Say this is not just a matter of the Beavis case and you need to see all the evidence and have a chance to respond to it, not just the Supreme Court decision which was not about a pay and display car park and has no relevance.

Copy in Parking Eye or email them separately and state you have never received the evidence pack so you have asked POPLA to put the case on hold and require it to be emailed straight away or you will be complaining to the BPA.

You have POPLA's email. ParkingEye's is info@parkingeye.co.uk

bucklag

Thanks Coupon-Mad, I have today received my evidence pack from Parking Eye and now have a further seven days to respond. The file is in PDF format is there any way I can get it onto here so I can get some advice on how to best respond to this.

Thanks again for any help.

Gary

Redx

no , not possible

you can host the pics on tinypic or photobucket though

the newbies sticky thread has links to rebuttals

bucklag

Thanks REDx

I am putting together my reply which I will post on here shortly. I have copied what I can from the PDF if anyone can offer tips of what they think I should add to my reply.

Thanks again in advance.

Case Detail
Site
Type
Name
Vehicle Registration Vehicle Make Vehicle Model Vehicle Colour Date/Time In Date/Time Out Time Allowed
Time In Car Park
Time Paid For
Payment Options Number of Paid Parking Machines
History
28/08/2015
System check/manual check identified breach of terms and conditions, prior to DVLA request
02/09/2015 03/09/2015 03/09/2015 24/09/2015
24/09/2015
Rules and Conditions
Request queued to DVLA for keeper details
DVLA response received – Success.
Parking Charge Letter Issued - Letter1 - Ltr01-134
Website appeal received from motorist, see Section E.
Check undertaken to locate vehicle registration on paid parking system (Evidence G)
Letter sent to motorist advising appeal unsuccessful as insufficient parking was purchased on the date of event also providing information confirming the Parking Charges are fair and reasonable including a breakdown of costs and Frequently Asked Questions – POPLA reference and details provided.
Seafront, Canvey Island, SS8 7DN ANPR monitored and enforced Mr GARY *********
********
MINI
COUNTRYMAN COOPER
RED
28/08/2015 11:28:38
28/08/2015 18:35:34
0 hours 0 minutes 0 seconds - Patrons of Movie Starr Cinema, Starr Snooker & VI Bowl are to register in reception to obtain free parking.
7 hours 6 minutes 56 seconds
6 hours 27 minutes 1 seconds
Paid Parking Machine.
1
Date of event

This site is a Paid Parking car park as clearly stated on the signage (enclosed). There are 12 signs, placed at the entrance, exit & throughout the site stating the terms and conditions.
Evidence G
System generated print out showing that insufficient time was purchased on the date of the event. Please find enclosed a copy of the contract signed by the property manager. This has been redacted for commercial purposes as the full contract cannot be provided to the motorist.
Authority
ParkingEye can confirm that the above site is on private land, is not council owned and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent).
It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract.
Further Information
Initially, ParkingEye would like to state that we are a leading user of ANPR Technology. We ensure that our cameras, technology and processes are of the highest quality, and have built up this expertise with almost 10 years of experience of using ANPR cameras. We ensure that we use the best cameras, and that these are expertly configured.
We have also developed a robust process for handling the data and ensuring the accuracy of the system. ParkingEye is regularly required to provide data taken from these ANPR cameras for Police investigations.
Once ParkingEye has installed the cameras, signage and other technology at a site, we will test the system extensively before Parking Charges are issued on site. This involves allowing the site to function normally without Parking Charges being issued, to ensure that the system is functioning correctly.
The British Parking Association Code of Practice contains guidelines for the use of ANPR cameras at Section 21. We comply fully with this;

21.1 – ParkingEye uses ANPR cameras in a reasonable, consistent and transparent manner. All signage contains the universally recognised symbol for the use of these cameras, and it is made clear that ANPR technology is in use on site.

21.2 – All data undergoes a multiple stage checking process, undertaken by trained ParkingEye staff to ensure that Parking Charges are issued correctly.

21.3 – All ANPR equipment is monitored and kept in good working order. A central team of trained Technical Support Engineers proactively monitor the performance of all systems to ensure the accuracy of data collected. Automated monitoring and alerting ensure potential issues are highlighted and dealt with quickly along with data management routines to ensure affected data does not result in a Parking Charge being issued. Dedicated mobile engineers respond to physical faults which require on-site resolution with testing periods to ensure equipment is configured and working to our high standards. Equipment is selected and deployed to ensure a reliable and robust solution which performs consistently and accurately.
Physical and logical access to data is restricted and processed securely. Full auditing of user access and actions ensures clear and full accountability. Dedicated server facilities are protected by named user access control systems.
ParkingEye has passed the relevant and most recent BPA audit.

21.4 – ParkingEye complies with all of the relevant guidelines including those set out by the ICO, DVLA and CO.

21.5 – The Notices to Keeper comply with Schedule 4 of the Protection of Freedoms Act 2012. ParkingEye’s Automatic Number Plate Recognition (ANPR) cameras and software are fully compliant with the British Parking Association Code of Practice. We ensure that the cameras are checked regularly by both automated routines and Technical Support Engineers to ensure that they are in good working order, and that they are producing accurate data. We have passed both our British Parking Association and DVLA audits and follow all DVLA requirements concerning the data that we obtain.
Images recorded by the ANPR (Automatic Number Plate Recognition) systems are time-stamped at source. The ANPR servers use NTP to regularly verify the accuracy of the local time clock with any adjustments being logged thus ensuring that all images are captured and stamped with an accurate time and date. Network Time Protocol (NTP) is a widely used standard to accurately synchronise computer time over wide area networks. Institutions that use NTP technology include; HM Revenue & Customs, The Metropolitan Police, NASA, Inland Revenue, The Land Registry, RBS, NASDAQ, Buckingham Palace, GlaxoSmithKline, Deutsche Bank, BBC, NHS, BAE Systems, BT, HP, DELL and the Bank of England. We firmly believe that these time-stamped images are accurate.
Any time deviance detected on the ANPR servers generates an automatic alert monitored by the Technical Support Team at ParkingEye Head Office. If at any stage of the process the ANPR cameras are found to be deviating, Parking Charges are not issued. There are automated and manual checks to ensure that the cameras are accurate.
It is important to note that cameras and ANPR servers are directly attached as an integrated solution situated on-site therefore ensuring the accuracy of the ANPR read and associated date-timestamp. Transactional data and images are recorded locally before batch transfer to our central systems.
There is no evidence to suggest that a Parking Charge has been issued incorrectly, and ParkingEye goes to great lengths to ensure that all Parking Charges are issued correctly. The data taken from the Automatic Number Plate Recognition cameras is sent to ParkingEye, where it undergoes a checking process of up to 19 stages. This ensures that no errors have been made. There are various other procedures in place to ensure that Parking Charges are issued correctly, and there is no reason to believe that an error has occurred in this case.
You have stated that you do not believe that the Parking Charge amount is a pre-estimation of loss or that it is extravagant/unfair/unreasonable. Please note that HHJ Moloney QC found within the case of ParkingEye v. Beavis and Wardley [2014] that a Parking Charge of £85 could not be considered an unenforceable penalty. The Judge found that the charge was proportionate and commercially justified. An appeal was subsequently lodged by the First Defendant and the matter was heard by the Court of Appeal. The appeal concerned two issues; namely, (a) whether the Parking Charge is unenforceable at common law because it is a penalty, and (b) whether it is unfair and therefore unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999). The Judgment was handed down on 23 April 2015 and the appeal was unanimously dismissed. The Judges found that the amount was “not extravagant or unconscionable and that the court should therefore not decline to enforce the contract”.
Addressing the issue of pre-estimate of loss and commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss suffered by the innocent party is inappropriate.”
In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd states at paragraph 47 that, “[...] the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with, merely on the basis that the contractual provision is disincentive, or deterrent, against overstaying”.
In terms of the amount of the Parking Charge, both the first instance and Court of Appeal Judgments, along with the BPA Code of Conduct at paragraph 19.5, support the level of Parking Charge issued by ParkingEye. At paragraph 7.13(i) HHJ Moloney QC considers the charges issued by local authorities, and notes that these charge amounts can be up to £105. Please note that as these are fines, backed by statutory authority, the costs of enforcing these charges are considerably lower than those encountered by a private parking company.
In addition, Moore-Bick LJ states at paragraph 25 that, “although it would be in theory be possible to charge motorists a much more modest amount for overstaying the free period, it would be wholly uneconomic to enforce such charges by taking legal proceedings against them” and he concludes at paragraph 26, as outlined above, that, “it [the charge] was neither improper in its purpose nor manifestly excessive in amount, having regard to the level of charges imposed by local authorities and others for overstaying in public car parks”.
Furthermore, at paragraph 28 of the Judgment, Moore-Bick LJ found that: “These provisions strongly support the conclusion that Parliament considered it to be in the public interest that parking charges of the kind now under consideration should be recoverable, [...] it is difficult to see on what basis it can be said that the charges which are not in themselves grossly unreasonable, are to be treated as unenforceable at common law.”
ParkingEye submits that the Court of Appeal’s Judgment provides much needed clarity to motorists and the Parking Industry, and delivers a binding precedent to support the position that our Parking Charges
are fair, reasonable and legally enforceable. ParkingEye acknowledge that Mr Beavis' appeal has now been heard by the Supreme Court.

There are further pictures of the site layout and signage, They also have a picture of my car entering and leaving the site which is dated and time stamped.

At the very bottom there seems to be their contract with the land owner which has been scanned on but is unreadable. I can make out that it is dated March 2012.

Thanks again.

Gary

Edna_Basher

bucklag wrote: »

At the very bottom there seems to be their contract with the land owner which has been scanned on but is unreadable. I can make out that it is dated March 2012.

It's definitely worthwhile highlighting to POPLA that the quality of ParkingEye's scan has rendered the contract unreadable - "New" POPLA have ruled in our favour against ParkingEye on this very point. Here's what assessor Nial Vivian had to say in our case:

"The appellant has stated that they do not believe the operator has the relevant authority of the landowner to pursue charges from or form contracts with motorists using the car park in question. Section 7 of the British Parking Association Code of Practice requires operators to own the land or to have written authority from the landowner to operate on the land. Upon reviewing the evidence, the operator has provided me with a copy of a signed contract. However, the quality of the document renders it unreadable, and as such I am not able to confirm that it is a contract between the operator and landowner confirming that the landowner has conveyed such authority to the operator".

Coupon-mad

I know that location, seen it before, I think.

Am I right that both pictures show your car outside the actual car park, between some bollards? And there is a barrier entrance but the car was pictured BEFORE that?

Am I right there are potholes everywhere which slows down the driver as they look for a space?

Am I right that one of the photos PE have supplied says 'incorrect sign' underneath their pictures of signs - the 'wrong' one tells people they must be customers of the facililty only?

If I'm right about this location, I would include in your argument that:

The ANPR timer has started when the car was outside the car park boundary, which is delineated by a barrier. As such, the photos actually show no evidence of the car within the car park at all as they are both taken outside the barrier and in fact, the driver recalls stopping at that point to try to read the signs around the barrier first, and to look into the site to see where to park since the surface is potholed and not the most welcoming of sites.

Despite peering at the signs at the entrance it was extremely confusing, due to the presence of an incorrect sign stating that the site was for customers only (which it is not, people can also pay and display). This alone (OUTSIDE THE SITE) took some 15 minutes as they debated whether to stay or not because the signs were confusing and seemed to suggest that only customers could park, yet another sign said the opposite. All this time the car was NOT in the car park at all.

The driver finally drove in, negotiated the pot-holes, waited for a clear space, parked and walked over to the machine to try to make sense of the wordy terms. As it was busy and the road surface here is so very bad, not all spaces are accessible and this activity alone took another 15 minutes before the driver was able to enter into any contract with this operator by virtue of paying a tariff.

So, at the start, an unquantified number of minutes (up to as much as 30 minutes difference from that alleged by ParkingEye, due to the awful state of the car park and conflicting entrance signs and unfair starting time of the 'clock') have been artificially added to the true time when the contract could have lawfully started. As such, the ANPR photo merely shows the point when the car was still outside and has added a very significant number of unquantified minutes to the timing. At the end, again the ANPR camera only shows the car at the bollards, after it had already passed the barrier which is no proof of the 'period of parking' at all.

Indeed the BPA code of practice allows another, further 11 minutes after the expiry of paid-for time, for a car driver & occupants to load bags, seat themselves & children, belt up and drive out of any car park. This is a prescribed Grace Period which, when added to the up to 30 minutes misleading time wrongly 'claimed' by ParkingEye as part of the contract at the start, makes the actual parking time unproven. The operator cannot fairly claim that the car was actually parked for longer than it should have been, based on two photos outside the site.

Further, among the conglomoration of wordy/mixed signs, there is nothing to tell a driver how the ANPR data captured will be used. So the driver - a genuine customer who paid and displayed once actually parked in a bay in the end - had no idea the timing had unfairly started before they even drove on site, when they were debating whether to enter at all.

This is inherently an unfair contract term under the Consumer Rights Act 2015 (CRA) and an unfair and misleading business practice under the CPUTRS 2008 as well as a clear breach of the BPA Code of Practice in several respects. Not only have NO pictures been taken of the car on site (only off site beyond the barriers) but they have failed to inform drivers how the captured ANPR data will be used. This is an ICO requirement for data handlers and ParkingEye have failed. The driver had no information to tell them that the clock started any earlier (much earlier in this case) than the moment when the payment was made after parking, so the driver cannot possibly be deemed to have agreed to that unfair term. Unfair and non-transparent terms are unenforceable under the CRA.

In National Car Parks v HMRC [2015] UKFTT 0666 (TC) in the First Tier Tax Tribunal, it was held in a relevant decision regarding when the contract starts in a Pay and Display car park (this rationale is applicable whether the payment is made by cash, card or by phone):

http://www.ukvatadvice.com/wp-content/uploads/2016/01/TC04784-NATIONAL-CAR-PARKS-LIMITED.pdf

47 '' The correct contract law analysis is as per Thornton v Shoe Lane Parking in the context of dealing with a car parking machine:

“it can be translated into offer and acceptance in this way; the offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise.”

Coupon-mad

You are also going to need a rebuttal of the rationale of the parking charge, distinguishing it from Beavis and showing it to be a penalty. There are examples on the forum already, this week, mostly written by salmosalaris and myself so far.

Let me know whether the above makes sense, maybe I'm recalling that car park wrongly and mistaking it for another one with a barrier & bollards outside and potholes? I have not seen it in person.

bucklag

Thanks everyone for their quick responses and help. :beer:

Heres my first draft:

POPLA Appeal - Evidence pack rebuttal

Rebuttal of evidence pack received from Parking Eye
[DATE]


Registered Keeper: [NAME]
PCN: [PCN NUMBER]
POPLA Appeal Number: [POPLA CODE]
Date evidence pack was received: [DATE]


Contents

POPLA Appeal - Evidence pack rebuttal

1) No landowner contract nor legal standing to form contracts or charge drivers


2) Poor signage / signage does not comply to the BPA:CoP and ambiguous ANPR evidence

3) The ‘Notice to Keeper’ fails to comply to the Protection of Freedoms act (PoFA)

4) No genuine pre-estimate of loss (GPEOL)




1) No landowner contract nor legal standing to form contracts or charge
drivers

Parking Eye has provided in Section G of their evidence pack a scan of a supposed management contract for the site. This statement is redacted making it impossible to identify the alleged signatory, therefore making this piece of evidence worthless. Even if identification of the alleged signatory was possible there is still no proof that the alleged signatory has ever seen the landowner contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise (BPA:CoP) to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

As Parking Eye are not the owners of this land and as such they cannot form a contract with the driver. Parking Eye has failed to provide to provide evidence of a full un-redacted copy of their contract with the landowner which allows them to form such a contract.

Parking Eye “Feels” that supplying a few unreadable pages of their landowner contract, and heavily redacting it, is sufficient proof that they have a compliant landowner contract and the legal standing to form contracts and charge drivers. The contract evidence supplied by Parking Eye is worthless, as it cannot be scrutinised for BPA:CoP compliance. Parking Eye should stop using their ‘feelings’ and actually supply evidence so that they can be put to strict proof.

A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives Parking Eye the legal standing to levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849, S!!!!hrope County Court, 16th May 2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, TPS have breached the BPA:CoP section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable.

Should a basic contract be produced mentioning parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.





In light of this, and in addition to these points, i will reiterate point 1 and 2 of my initial appeal, which Parking Eye have failed to adequately address with their ridiculous quasi evidence:

1) No standing or authority to pursue charges nor form contracts with drivers

Parking Eye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against Total Parking Solutions which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

2) Flawed landowner contract and irregularities with any witness statement

Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require Parkin Eye to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.

If Parking Eye produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that Parking Eye witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest Parking Eye don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.


Also in recent successful POPLA appeal Here's what assessor Nial Vivian had to say in a case:

"The appellant has stated that they do not believe the operator has the relevant authority of the landowner to pursue charges from or form contracts with motorists using the car park in question. Section 7 of the British Parking Association Code of Practice requires operators to own the land or to have written authority from the landowner to operate on the land. Upon reviewing the evidence, the operator has provided me with a copy of a signed contract. However, the quality of the document renders it unreadable, and as such I am not able to confirm that it is a contract between the operator and landowner confirming that the landowner has conveyed such authority to the operator".





2) Poor signage / signage does not comply to the BPA:CoP and ambiguous ANPR evidence


From the photos supplied in Section D of Parking Eyes evidence pack The ANPR timer has started when the car was outside the car park boundary, which is delineated by a barrier. As such, the photos actually show no evidence of the car within the car park at all as they are both taken outside the barrier and in fact, the driver recalls stopping at that point to try to read the signs around the barrier first, and to look into the site to see where to park since the surface is potholed and not the most welcoming of sites.

Despite peering at the signs at the entrance it was extremely confusing, due to the presence of an incorrect sign stating that the site was for customers only (which it is not, people can also pay and display). This alone (OUTSIDE THE SITE) took some 15 minutes as they debated whether to stay or not because the signs were confusing and seemed to suggest that only customers could park, yet another sign said the opposite.
The driver finally drove in, negotiated the pot-holes, waited for a clear space, parked and walked over to the machine to try to make sense of the wordy terms. As it was busy and the road surface here is so very bad, not all spaces are accessible and this activity alone took another 15 minutes before the driver was able to enter into any contract with this operator by virtue of paying a tariff.

So, at the start, an unquantified number of minutes (up to as much as 30 minutes difference from that alleged by ParkingEye, due to the awful state of the car park and conflicting entrance signs and unfair starting time of the 'clock') have been artificially added to the true time when the contract could have lawfully started. As such, the ANPR photo merely shows the point when the car was still outside and has added a very significant number of unquantified minutes to the timing. At the end, again the ANPR camera only shows the car at the bollards, after it had already passed the barrier which is no proof of the 'period of parking' at all.

Indeed the BPA code of practice allows another, further 11 minutes after the expiry of paid-for time, for a car driver & occupants to load bags, seat themselves & children, belt up and drive out of any car park. This is a prescribed Grace Period which, when added to the up to 30 minutes misleading time wrongly 'claimed' by ParkingEye as part of the contract at the start, makes the actual parking time unproven. The operator cannot fairly claim that the car was actually parked for longer than it should have been, based on two photos outside the site.

Further, among the conglomoration of wordy/mixed signs, there is nothing to tell a driver how the ANPR data captured will be used. So the driver - a genuine customer who paid and displayed once actually parked in a bay in the end - had no idea the timing had unfairly started before they even drove on site, when they were debating whether to enter at all.

This is inherently an unfair contract term under the Consumer Rights Act 2015 (CRA) and an unfair and misleading business practice under the CPUTRS 2008 as well as a clear breach of the BPA Code of Practice in several respects. Not only have NO pictures been taken of the car on site (only off site beyond the barriers) but they have failed to inform drivers how the captured ANPR data will be used. This is an ICO requirement for data handlers and ParkingEye have failed. The driver had no information to tell them that the clock started any earlier (much earlier in this case) than the moment when the payment was made after parking, so the driver cannot possibly be deemed to have agreed to that unfair term. Unfair and non-transparent terms are unenforceable under the CRA.

In National Car Parks v HMRC [2015] UKFTT 0666 (TC) in the First Tier Tax Tribunal, it was held in a relevant decision regarding when the contract starts in a Pay and Display car park (this rationale is applicable whether the payment is made by cash, card or by phone):



47 '' The correct contract law analysis is as per Thornton v Shoe Lane Parking in the context of dealing with a car parking machine:

“it can be translated into offer and acceptance in this way; the offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise.”




3) The ‘Notice to Keeper’ fails to comply to the Protection of Freedoms act (PoFA)

I refer to the ‘Notice to Keeper’ presented in Section E, Notice of Rejection, of the evidence pack provided by Parking Eye, And would wish to draw your attention to the following Heading contained therein:

I Wasn’t the driver therefore I will not be paying the parking charge

This statement makes it clear that Parking Eye is dealing with its claim in accordance with the requirements of Schedule 4 of PoFA. The requirements of Schedule 4 are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.

The BPA:CoP also supports the need for strict compliance in Section 21, paragraph 5:
“If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9).”

Parking Eye has however failed to comply in regards to paragraph 9(2)(h) of Schedule 4, PoFA 2012.

Whilst the ‘Notice to Keeper’ indicates that a payment is to be made to “Total Parking Solutions Ltd”, there is no specific identification of the “Creditor”, who may, in law, be TPS or some other party.

PoFA requires a ‘Notice to Keeper’ to have words to the effect that “The Creditor is….”

The wording of Paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the “creditor must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.

This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided.

He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”.

4) No genuine pre-estimate of loss (GPEOL)


Parking Eye seem to be under the misapprehension that the Supreme Court judgment was a green light legitimising all frivolous parking charges . It is in fact quite the reverse and makes plain that in each individual circumstance the operator must have a legitimate interest in enforcing the charge and that charge must be proportionate to that interest to avoid the charge being an unenforceable penalty . In this case they do not ,it is not and it does not.
There is no legitimate interest in enforcing a charge against a motorist who had paid to park all day. The charge is simply being enforced in an attempt to punish the motorist for an alleged inadvertent mistake solely for the operator's profit , that is not a legitimate interest . None of the reasons that gave Parking Eye a legitimate interest that disengaged the penalty rule in their case against Mr Beavis are present in this case in which the penalty rule remains firmly engaged .

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment. There must be a legitimate interest in enforcing the charge.




I wish to rebut Parking Eyes evidence in its entirety and am not liable to pay £100.


Parking Eye seem unsure as to the rationale behind their disproportionate charge and can't have it both ways. On the one hand when talking about the UTCCRs, they say ''We reject the notion that our charges require consumers ‘to pay a disproportionately high sum in compensation’ in its entirety and assert that our charges are a genuine pre-estimate of loss.''

Yet when hanging on the coat-tails of the non-comparable decision in ParkingEye v Beavis they assert the opposite: ''the POPLA Appeal mentions Genuine Pre-Estimate Of Loss, however this charge does not represent this at all.''

So which is it? I assert that they have failed to show that this charge is not merely a penalty, bearing in mind that the Beavis case confirmed that the 'penalty rule' is certainly engaged in parking charge cases and it is up to the operator to show enough consistent information - bearing in mind the facts of each case - to disengage it.

The facts here differ significantly from the Beavis case. UKPC have admitted that they would have been happy to have accepted £60 early payment. This £60 was not paid.

This sum of £60 sets this case apart from the Beavis case because that is the sum that Parking Eye admit they would have accepted to resolve the dispute after the event. There is no such comparator in the Beavis case. Unlike in the Beavis case where there was free parking offered under licence first and no quantified sum under £85.

A sum of £60 which would have been accepted for settlement after the event cannot suddenly escalate to £100. At no point did the driver consent to pay £100 at the point of parking,

consideration flowed from the driver and none from the operator either (unlike in the Beavis case). The elements of a contract are fundamental, as is evidence of breach, and neither exist here (unlike in Beavis).

This is an unfair 'price escalation clause which is an unenforceable penalty an unfair under the UTCCRs (now incorporated within the Consumer Rights Act 2015). UKPC have quoted the regulations themselves which state:

''the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.''

So the Regulations say the same as the Beavis Judges were at pains to make clear; everything depends on 'all the circumstances' of each case. And the circumstances of an operator being prepared to accept £60, as here, set this apart from Beavis and UKPC have quantified the only loss that could feasibly/fairly be pursued in this case.

Considering all the facts of this case, this charge is unconsionable, not contractually agreed, disproportionate when compared to £60. Parking Eye are not saved by the Beavis case at all where it was stated that charges cannot be set in order to punish.

Parking Eye seem to be under the misapprehension that the Supreme Court judgment was a green light legitimising all frivolous parking charges.

It is in fact quite the reverse and makes plain that in each individual circumstance the operator must have a legitimate interest in enforcing the charge and that charge must be proportionate to that interest to avoid the charge being an unenforceable penalty. In this case they do not, it is not and it does not.

There is no legitimate interest in enforcing a charge against a motorist who had every right to park simply because they allegedly overstayed the Parking Eyes definition of All Day. The charge is simply being enforced in an attempt to punish the motorist for an alleged inadvertent mistake solely for the operator's profit, that is not a legitimate interest.

Even if a permit had not been purchased (which is denied) the charge is extravagant, unconscionable and disproportionate with reference to such a mistake when nobody else is inconvenienced or affected in any way as the vehicle had every right to park as it did.

None of the reasons that gave Parking Eye a legitimate interest that disengaged the penalty rule in their case against Mr Beavis are present in this case in which the penalty rule remains firmly engaged.

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment.

Even if there is a legitimate interest in issuing a ticket because it was believed the vehicle had no right to be there, that is simply not enough. There must be a legitimate interest in enforcing the charge and no contract agreed to pay £100, there is no legitimate interest in enforcing it in this case. Indeed the operator has failed to reveal any legitimate interest they may have in enforcing a £100 charge in this case and has tried desperately to argue two diametrically opposed rationales for this sum.

I believe the facts of this unfair parking charge are such that POPLA should uphold my appeal, considering all the circumstances.