Moorgate Retail Park, Bury car park POPLA appreal

Ajaymistryuk

Hi all,

First of all, thank you for this great forum. It has proven to be a formidable place to share experiences and knowledge.

I am using this thread as I have received a PCN from the PPC Parking eye .

The situation is the following:
The driver parked in the Moorgate Retail Park, Bury car park on 30th September 2015.
Two weeks later I (registered keeper only),received a PCN of £100 for an alleged overstay of the two hour limit by thirty two minutes.
I have followed the guidance in the newbies thread and used the template to appeal to Parking Eye which has been already rejected.
This is my try for the POPLA; any advice of guidance would be appreciated.
[FONT=&quot]Dear POPLA assessor,

[/FONT]
[FONT=&quot]Re: ParkingEye PCN, reference code: XXXXXXXX[/FONT]
· [FONT=&quot]POPLA reference number: XXXXXXXXX[/FONT]
[FONT=&quot]I am the keeper of the vehicle with registration number XXXXXXX.
On 12/10/2015 I received by mail a Parking Charge Notice demanding a Charge of £100 from [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] alleging a parking “offence” on 30/09/15, at “Mooregate Retail Park, Bury car park”[/FONT]
[FONT=&quot]
My original appeal on 14/10/15 to the operator [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] directly was rejected and I was supplied with a POPLA verification code. [/FONT]
[FONT=&quot]I am not liable for the alleged Charge for the following reasons:[/FONT]
[FONT=&quot]The grounds for this appeal are the following:[/FONT]
[FONT=&quot]1 [/FONT][FONT=&quot]A non-compliant, and erroneous Notice To Keeper (NTK), failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, therefore there is no keeper liability.[/FONT]
[FONT=&quot]2 [/FONT][FONT=&quot]The ANPR system is unreliable and neither synchronised nor accurate.[/FONT]
[FONT=&quot]3 [/FONT][FONT=&quot]Unfair contact terms under the Unfair Terms in Consumer Contracts Regulations 1999.[/FONT]
[FONT=&quot]4 [/FONT][FONT=&quot]Proprietary Interest.[/FONT]
[FONT=&quot]5 [/FONT][FONT=&quot]No genuine pre-estimate of loss.[/FONT]

[FONT=&quot]1) [/FONT][FONT=&quot]A non-compliant, and erroneous Notice To Keeper (NTK), failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, therefore there is no keeper liability.[/FONT][FONT=&quot]

In order to pursue Keeper Liability under the POFA, [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the Notice to Keeper as per Paragraph 9 Schedule 4 of the Act.

The Notice to Keeper is non-compliant under the POFA 2012 for the following reasons:[/FONT]
[FONT=&quot](A) The period of parking is not specified in the Notice to Keeper, only the times the car was seen in traffic on arrival and on the final time it left that day. There is no evidence of parking at all.

(B) The Notice to Keeper does not inform the Keeper that the Driver is required to pay parking charges in respect of the specified period of parking, and that the parking charges have not been paid in full.

(C) The Notice to Keeper fails to set out any unpaid parking charges for the specified period of parking. POFA requires that a Notice to Keeper describes any unpaid charges which the Driver owed at the time of the issue of the postal Notice to Keeper.

A charge for breach of contract cannot be described as unpaid by the Driver at the time the Notice to Keeper is issued, because it only arises at the time the Notice to Keeper is received. The punitive amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA. The Act requires any unpaid tariff that the Driver owed before the Notice to Keeper was issued to be stated, and that this is the only sum that can be pursued from a registered Keeper.

(D) The Notice to Keeper does not identify the Creditor. The fact that an Operator's name is on a Notice to Keeper as the payee, does not identify them as the Creditor, as administrative functions such as sending notices and collecting monies can be carried out by other parties. The Creditor has to be identified with words to the effect 'The Creditor is...'.

(E) It also fails to show the geographical address of the client/Landowner. This is a requirement for all consumer contracts, as well as being a breach of the POFA. the Notice To Keeper names the relevant land on which the vehicle was allegedly parked as “Mooregate Retail Park, Bury car park”. Not only is this incorrect, but is not even a valid and fully-formed address and fails to specifically identify the alleged location and/or the land of the supposed parking event and subsequent Charge. [/FONT]
[FONT=&quot]
The requirements of Schedule 4 of the POFA as regards the wording in a compliant Notice to Keeper are prescriptive, unequivocal and a matter of statute, not contract law. Any omission, or failure to set out any of the mandatory wording, means there is no Keeper liability. This point alone invalidates their Notice To Keeper (NTK) for lacking clear and concise information relating to the alleged parking event, eliminating their right to claim unpaid parking charges from the keeper of a vehicle under Paragraph 4(2)(a) of Schedule 4 of POFA 2012.

In this case the Driver has not been identified, so the failure of [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] to meet the conditions to invoke Keeper Liability means there is no legal basis for the charge to be enforced against me as Keeper.

[/FONT]
[FONT=&quot]2) [/FONT][FONT=&quot]The ANPR system is unreliable and neither synchronised nor accurate.[/FONT]
[FONT=&quot]
ParkingEye's evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that evening.

As keeper I cannot discount that this may have been a double visit. Or the driver may have driven in, realised it was pay and display then driven out to get change before returning (and of course the ANPR cameras show only the first and last visits). The BPA even mention this as an inherent problem with ANPR on their website[FONT=&quot]:

[/FONT] [/FONT] [FONT=&quot][FONT=&quot]xxx.[/FONT]britishparking.co.uk/How-does-ANPR-work[/FONT]
[FONT=&quot]
The BPA's view is: 'As with all new technology, there are issues associated with its use:[/FONT]
[FONT=&quot]a) [/FONT][FONT=&quot]Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'[/FONT]
[FONT=&quot]b) [/FONT][FONT=&quot]Even if an Operator shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All footage would have to be checked and this Operator will be unable to refute the double visit possibility since they don't bother to record continuous footage. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.[/FONT]

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

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

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

[FONT=&quot]3) [/FONT][FONT=&quot]Unfair contact terms under the Unfair Terms in Consumer Contracts Regulations 1999.[/FONT][FONT=&quot]

There is no contract between ParkingEye and the Driver, but even if there was a contract the charge that was levied is an unfair term, and therefore not binding, pursuant to the Unfair Terms in Consumer Contracts Regulations 1999.

Schedule 2 of those Regulations gives an indicative list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) ‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’

The Charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999.
Regulation 5(1) states that: ‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer’.
Regulation 5(2) states: ‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

I therefore put ParkingEye to strict proof that their charge is not in breach of Unfair Terms in Consumer Contracts Regulations 1999.

[In the Barry Beavis v ParkingEye hearing at the Supreme Court in July 2015 the matter of the Aziz test was discussed, relating to the ECJ case: Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5]. [/FONT]

[FONT=&quot]The question arising from that binding case is whether a term would have been agreed, had the parties sat down with a blank sheet of paper and negotiated the term in advance. I can state as an indisputable fact that the driver would without a shadow of doubt, never have agreed to this term, had it been negotiated in advance.[/FONT]
[FONT=&quot]4) [/FONT][FONT=&quot]Proprietary Interest.
[/FONT][FONT=&quot]
Parking Eye has not provided enough evidence of their interest in the land as they have no legal possession which would give ParkingEye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. The registered keeper believes there is no contract with the landowner/occupier that entitles them to levy these charges and to pursue them in the courts in their own name as creditor. Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant. Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.

I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous [/FONT][FONT=&quot]signed and dated [/FONT][FONT=&quot]copy of the contract between ParkingEye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkingEye.[/FONT][FONT=&quot] To demonstrate standing and authority, must specifically state that [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] has the right to make contracts with drivers in their own name, that they have full authority to pursue charges through to court in their own name, and that the Landowner allows [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] to charge £100 for a parking contravention. A witness statement to the effect that a contract is in place, which could be signed by someone who may never have seen the actual contract, will not be sufficient because it will not show the terms and conditions relating to the Operator’s authority, nor any restrictions that are in place.

If [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] wish to rely on any such contract, I require them to show, on a point-by-point basis, that the contract is in complete compliance with all the requirements set out in the BPA Code of Practice.[/FONT]

[FONT=&quot]5) [/FONT][FONT=&quot]No genuine pre-estimate of loss.
[/FONT][FONT=&quot]
The charge is a penalty and not a genuine pre-estimate of loss. In its parking charge notice, ParkingEye has failed to sufficient evidence to justify the £100 loss the landowner might have incurred for the extra 32 minutes the car was parked in its property. For this charge to be justified, a full breakdown of the costs ParkingEye has suffered as a result of the car being parked at the car park, is required and should add up to £100. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any car being parked at that car park. [/FONT]
[FONT=&quot]
This charge from ParkingEye is a third party business agent is an unenforceable penalty. The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

POPLA and ParkinEye will be also familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect ParkingEye might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage". My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.[/FONT]

[FONT=&quot]
This concludes my POPLA appeal.
Yours faithfully,[/FONT]

Fruitcake

I haven't read it all yet but you should have inadequate signage in there as well, preferably with photo proof that it doesn't meet the BPA CoP.

Redx

5) is dead and buried after todays court ruling, the case you quote is now superceded by the Beavis case

ps:- there are a lot of spelling mistakes in the draft appeal too

Ajaymistryuk

Redx wrote: »

5) is dead and buried after todays court ruling, the case you quote is now superceded by the Beavis case

ps:- there are a lot of spelling mistakes in the draft appeal too

[FONT=&quot]Hi Redx, can I ask for your support to advise how I can reword the following paragraph from point [/FONT]5.[FONT=&quot][/FONT]
[FONT=&quot]“This charge from ParkingEye is a third party business agent is an unenforceable penalty. The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.”[/FONT]

Redx

you can ask, but I definitely wont be advising on how to reword it

all I will say is that its now gobbledegook in its present state, todays Beavis decision saw to that

I am sure that somebody will tell you to delete all of it, or to alter it in the light of todays judgment

so yes you can ask, and somebody may answer and may reword it for you, but that somebody will not be me

The_Slithy_Tove

Redx wrote: »

5) is dead and buried after todays court ruling, the case you quote is now superceded by the Beavis case

The Supreme Court ruling also made #3 obsolete, effectively striking down that particular piece of legislation.

My recommendation to all OPs at the moment is to hang fire on any appeal until minds better than mine come up with a strategy for dealing with the New World Order. Unless there's a deadline looming, that is.

Redx

ah yes, missecd that one as I was looking at 5)

so remove both , then decide if anything can be added , plus sort out the spelling mistakes like CONTACT (missing R) , plus add a signage point

Guys_Dad

Can you be specific about the date of the NtK? Just checking that it is not out of time

The driver parked in the Moorgate Retail Park, Bury car park on 30th September 2015.
Two weeks later I (registered keeper only),received a PCN of £100 for an alleged overstay of the two hour limit by thirty two minutes.

Ajaymistryuk

[FONT=&quot]Thank you guys for looking at my post. I have taken note of all your comments and updated my appeal below v0.2.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]I would be grateful if this can now be reviewed and advise on amendments and if its good to submit to POPLA?[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Changes:
[FONT=&quot]The following section hav[FONT=&quot]e [FONT=&quot]been removed [/FONT][/FONT][/FONT][/FONT][FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot]following today’s Beavis decision:
[/FONT][/FONT][/FONT][/FONT][/FONT][FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot] - -No genuine pre-estimate of loss[/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][FONT=&quot] 'No GPEOL'[FONT=&quot].[/FONT]
[/FONT][FONT=&quot] - -Unfair [FONT=&quot]contract[/FONT] terms under the Unfair Terms in Consumer Contracts Regulations 1999.

[/FONT]


[FONT=&quot]Dear POPLA assessor,

[/FONT]
[FONT=&quot]Re: ParkingEye PCN, reference code:xxxxxxx[/FONT]
· [FONT=&quot]POPLA reference number: xxxxxx[/FONT]
[FONT=&quot]I am the keeper of the vehicle with registration number xxxxxx[/FONT]
[FONT=&quot]
[/FONT] - [FONT=&quot]On 12/10/2015 I [/FONT][FONT=&quot][FONT=&quot]([/FONT]registered keeper)received by mail a Parking Charge Notice demanding a Charge of £100 from [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] alleging a parking “offence” on 30/09/15, at “Moorgate Retail Park, Bury car park”.[/FONT]
- [FONT=&quot]My original appeal on 14/10/15 to the operator [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] directly was rejected on 29/10/15 and I was supplied with a POPLA verification code by mail on 03/11/15. [/FONT]
- [FONT=&quot]I now have till 08/12/15 to appeal to POPLA[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]I am not liable for the alleged Charge for the following reasons:[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]The grounds for this appeal are the following:[/FONT]
[FONT=&quot]
[/FONT]

1. [FONT=&quot])[/FONT][FONT=&quot] A non-compliant and erroneous Notice To Keeper (NTK), failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, therefore there is no keeper liability.[/FONT]
2. [FONT=&quot])[/FONT][FONT=&quot] The signage on the possible site is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.[/FONT]
3. [FONT=&quot]) [/FONT][FONT=&quot]The ANPR system is unreliable and neither synchronised nor accurate.[/FONT]
4. [FONT=&quot]) [/FONT][FONT=&quot]Proprietary Interest.[/FONT]

[FONT=&quot]1) [/FONT][FONT=&quot]A non-compliant, and erroneous Notice To Keeper (NTK), failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, therefore there is no keeper liability.[/FONT][FONT=&quot]

In order to pursue Keeper Liability under the POFA, [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the Notice to Keeper as per Paragraph 9 Schedule 4 of the Act.

The Notice to Keeper is non-compliant under the POFA 2012 for the following reasons:[/FONT]
[FONT=&quot](A) The period of parking is not specified in the Notice to Keeper, only the times the car was seen in traffic on arrival and on the final time it left that day. There is no evidence of parking at all.

(B) The Notice to Keeper does not inform the Keeper that the Driver is required to pay parking charges in respect of the specified period of parking, and that the parking charges have not been paid in full.

(C) The Notice to Keeper fails to set out any unpaid parking charges for the specified period of parking. POFA requires that a Notice to Keeper describes any unpaid charges which the Driver owed at the time of the issue of the postal Notice to Keeper.

A charge for breach of contract cannot be described as unpaid by the Driver at the time the Notice to Keeper is issued, because it only arises at the time the Notice to Keeper is received. The punitive amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA. The Act requires any unpaid tariff that the Driver owed before the Notice to Keeper was issued to be stated, and that this is the only sum that can be pursued from a registered Keeper.

(D) The Notice to Keeper does not identify the Creditor. The fact that an Operator's name is on a Notice to Keeper as the payee, does not identify them as the Creditor, as administrative functions such as sending notices and collecting monies can be carried out by other parties. The Creditor has to be identified with words to the effect 'The Creditor is...'.

(E) It also fails to show the geographical address of the client/Landowner. This is a requirement for all consumer contracts, as well as being a breach of the POFA. The Notice To Keeper names the relevant land on which the vehicle was allegedly parked as “Moorgate Retail Park, Bury car park”. Not only is this incorrect, but is not even a valid and fully-formed address and fails to specifically identify the alleged location and/or the land of the supposed parking event and subsequent Charge. [/FONT]
[FONT=&quot]
The requirements of Schedule 4 of the POFA as regards the wording in a compliant Notice to Keeper are prescriptive, unequivocal and a matter of statute, not contract law. Any omission, or failure to set out any of the mandatory wording, means there is no Keeper liability. This point alone invalidates their Notice To Keeper (NTK) for lacking clear and concise information relating to the alleged parking event, eliminating their right to claim unpaid parking charges from the keeper of a vehicle under Paragraph 4(2)(a) of Schedule 4 of POFA 2012.

In this case the Driver has not been identified, so the failure of [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] to meet the conditions to invoke Keeper Liability means there is no legal basis for the charge to be enforced against me as Keeper.

[/FONT]
[FONT=&quot]2) [/FONT][FONT=&quot]The signage on the possible site is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.[/FONT][FONT=&quot]

The British Parking Associations’ Code Of Practice (BPA’s CoP) at Appendix B (version 5 as it applied at the time and date of the alleged parking event) sets out the strict requirements for entrance signage:

"The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead" and "There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''

A contract between [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] and the Driver could only be formed at the entrance to the site, prior to parking, when the driver is in a position to decide whether or not to enter the car park.

Upon arrival to the possible site, [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] have failed to make it adequately clear that parking on this site is subject to a parking management. The signs on this site are small (See photo 1). There is no possibility of a driver reading the small print on a parking sign while focusing on these driving imperatives. [/FONT]
[FONT=&quot]ParkingEye[/FONT][FONT=&quot]’s entrance sign is located in a position where it is surrounded by numerous other signs. Within 15 metres of the [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] sign there are several other traffic signs, speed signs, lane direction signs, information signs, advertising signs and written road markings. The [/FONT][FONT=&quot]ParkingEye [/FONT][FONT=&quot]sign has been positioned in the middle of these. In addition, the print size of the parking terms on [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot]’s sign is by far the smallest of all the information appearing on any of these other signs, making it the least likely to be noticed by the driver. The small print size means the parking terms could only be read when standing directly in front of the sign.

The signs are not lit or reflective (as per the BPA’s CoP). Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of them and agreed. These factors combine to make the signs difficult to notice and difficult to read. I contend that the poor lighting, the size of the signs and the print size means it cannot be claimed that the signs are so prominent they ‘must’ have been seen and read by the Driver.

I contend that the information set out above clearly shows that the signs [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] are relying on were not sufficiently prominent or legible that the Driver ‘must’ have seen, read, understood and agreed to their terms. Terms set out on a sign are not imported into a contract unless brought home so prominently that the party 'must' have known and agreed to them. Nothing about these signs, or the terms set out in them, was sufficiently prominent.

I contend 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 in this case. I contend that any parking sign within the car park cannot be claimed to establish terms of a contract with the Driver, as such signs are not available for a driver to see until they have already entered the car park.

The signs do not state that by parking on the possible site forms a contract with [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] therefore there can be no possibility of a contract since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] in this case.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued:

“The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling”.[/FONT]

[FONT=&quot]3) [/FONT][FONT=&quot]The ANPR system is unreliable and neither synchronised nor accurate.[/FONT]
[FONT=&quot]
ParkingEye's evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that evening.

As keeper I cannot discount that this may have been a double visit. Or the driver may have driven in, realised it was pay and display then driven out to get change before returning (and of course the ANPR cameras show only the first and last visits). The BPA even mention this as an inherent problem with ANPR on their website:

[/FONT][FONT=&quot]britishparking.co.uk/How-does-ANPR-work[/FONT][FONT=&quot]

[/FONT] [FONT=&quot]The BPA's view is[/FONT][FONT=&quot]: 'As with all new technology, there are issues associated with its use:[/FONT]
[FONT=&quot]a) [/FONT][FONT=&quot]Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'[/FONT]
[FONT=&quot]b) [/FONT][FONT=&quot]Even if an Operator shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All footage would have to be checked and this Operator will be unable to refute the double visit possibility since they don't bother to record continuous footage. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.[/FONT]

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

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

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

[FONT=&quot]4) [/FONT][FONT=&quot]Proprietary Interest.[/FONT]


Parking Eye has not provided enough evidence of their interest in the land as they have no legal possession which would give ParkingEye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. The registered keeper believes there is no contract with the landowner/occupier that entitles them to levy these charges and to pursue them in the courts in their own name as creditor. Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant. Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.[FONT=&quot]

I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous [/FONT][FONT=&quot]signed and dated [/FONT][FONT=&quot]copy of the contract between ParkingEye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkingEye.[/FONT][FONT=&quot] To demonstrate standing and authority, must specifically state that [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] has the right to make contracts with drivers in their own name, that they have full authority to pursue charges through to court in their own name, and that the Landowner allows [/FONT][FONT=&quot]ParkingEye[/FONT] to charge £100 for a parking contravention. A witness statement to the effect that a contract is in place, which could be signed by someone who may never have seen the actual contract, will not be sufficient because it will not show the terms and conditions relating to the Operator’s authority, nor any restrictions that are in place.[FONT=&quot]

If [/FONT][FONT=&quot]ParkingEye[/FONT][FONT=&quot] wish to rely on any such contract, I require them to show, on a point-by-point basis, that the contract is in complete compliance with all the requirements set out in the BPA Code of Practice.[/FONT]
[FONT=&quot]
This concludes my POPLA appeal.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot] Yours faithfully,[/FONT]


[FONT=&quot]registered keeper [/FONT]

Guys_Dad

I believe that the Supreme court decision today rules out appeal point 5 as , even using the same wording as you have, they reached the opposite conclusion.

Redx

and appeal point 4) too