Parking eye PCN appeal

stobo91

Hi all,

In this case the driver pulled into a pitch black car park at approx 8pm, and left again 15 minutes later and 7 days later i receive a PCN (as the registered keeper) from ParkingEye.

The last time the driver used this car park, it wasn't run by ParkingEye and it was free to park here in the evenings. Also bearing in mind it was pitch black, the only sign informing drivers that it is now monitored by Parking Eye/ANPR cameras etc is one small one above head height which is near enough impossible for car headlights to pick up as they enter the car park.

Driver has pulled up, nipped into the Pub (Marstons) to pick someone up, returned to car15 minutes later and left again.

After reading the newbie thread I have prepared an appeal to submit using ParkingEye online appeal system. This PCN hasn't come at the best of times for the driver at the minute and is really close to coughing up the £60 make it go away, if we appeal, will we lose the chance to settle up at the lower rate? (deadline for early payment discount is tomorrow, 5/11/15)

Will the result of the Beavis case affect my appeal process in anyway?

Many thanks.

Redx

its not a fine

the pcn can be challenged using the template letter and any appeal will be based on the following

no landowner contract in place
inadequate, poor , unlit signage
any flaws under POFA 2012
anpr accuracy

this would be the case for the initial appeal, plus any subsequent popla appeal

todays court ruling would likely stop any claim based on the NOT A GPEOL argument but not on the other arguments, like the unlit signage you mention

stobo91

Thanks Redx,

i will submit my initial appeal today using the template letter and see where that takes me.

Out of interest, if the appeal gets rejected at the POPLA stage, is that the end of it and ill have to cough up? Its a £60/£100 PCN

stobo91

Sorry ive got another question before i appeal,

Around October 2012, as the registered owner of the vehicle (same vehicle in question this time), i received a PCN from Parking Eye.

I ignored the initial letter and all subsequent letters from PE and a debt recovery company and no court letter ever came of it.

If i appeal this time round as i understand its now not the best idea to ignore them, could the old PCN get dragged up somehow?

thanks.

Redx

its possible they could drag up the old one as well (or anyway) , as they have 6 years to initiate court proceedings on any invoice, so the statute on that one runs out in 2018

popla is binding on the PPC but not the motorist , in which case if you dont pay up if you lost at popla they have 6 years to initiate court proceedings on that one too

the lower payment is a discount for early payments that stops the appeals process and encourages (goads) people into paying early

there is nothing binding upon you unless you lost in court, then you get 28 days to pay what the court says (the judgment)

stobo91

Thanks for the info, was really tempted to ignore as it seemed to be successful last time.

Fingers crossed

Redx

PE take people who ignore to court , over thirty thousand court claims per annum, plus due to todays court ruling you can expect a lot more in the future

if you are lucky, they have "lost" your old ticket , or they decided not to bother back then due to the uncertainty

as they have 6 years to start an MCOL, its only halfway at the moment

stobo91

I have now had a rejection letter from PE and have a POPLA code.

I used a template for my initial appeal to PE, but I believe the grounds I want to appeal on to POPLA are-

Contract with landowner to chase these invoices

Inadequate signage and poorly lit

Also the driver was only in the car park 15 minutes from
Entrance to exit, and considering the two nearby cash machines were out of order made it nearly impossible to get back to the car park to move the car within the 10 minute grace period.

Anything else worth adding Into the appeal? I'm hopeless with this type of thing so hoping I can find a template to edit slightly to send off ASAP.

Redx

2 popla examples linked in the NEWBIES thread, adapt as much as you like

appeal grounds include

POFA2012 errors
NTK flaws or errors
no landowner contract to enforce
poor signage and inadequately lit
cash machines out of order causing further delays
failures under the UTCCR , regs , now its the CRA 2015

plus clause 13 of the latest BPA CoP about grace periods being say up to 10 mins at the beginning to read and comply with the parking rules. and at least 11 minutes to leave the car park afterwards

pe only manage time on site using anpr, not the actual parking time

stobo91

[FONT=&quot]This is how its looking as it stands. Struggling for the grace period bit to be honest and adding in the out of cash machines.[/FONT]

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[FONT=&quot]Will have another attempt tomorrow as my head is banging![/FONT]

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[FONT=&quot]Thanks again for your reply!
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[FONT=&quot]Re: ParkingEye PCN, reference code
POPLA Code: [/FONT]
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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) [FONT=&quot]ParkingEye Ltd has no contractual authority
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
3) [FONT=&quot]No Contract was entered into between the Parking Eye and the Driver or Registered keeper[/FONT]
4) [FONT=&quot]Non BPA compliant signage[/FONT]
5) [FONT=&quot]Keeper Liability Requirements and the Protection of Freedom Act[/FONT][/FONT]
[FONT=&quot]6) The charge is punitive and not a genuine pre-estimate of loss[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
1) [FONT=&quot]ParkingEye Ltd has no contractual authority[/FONT]

In the notices they have sent me ParkingEye Ltd have not shown any evidence that they have any proprietary interest in the car park/land in question. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I require ParkingEye Ltd to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that ParkingEye Ltd are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.


2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

These are the omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'
NTK is not compliant, for example re this requirement:

The NTK specifically fails on all counts.

It even misdescribes the circumstances, stating that the 'free stay' allowed is 0 hours and 0 minutes and that the contravention is for 'staying longer than authorised' or 'without authorisation'. Well it's a P&D car park, not a permit one, so there is no possibility of 'authorisation'. Therefore the NTK is non-compliant.
The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.

3) [FONT=&quot]No Contract was entered into between the Parking Eye and the Driver or Registered keeper[/FONT]

Although I was not the driver I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Parking Eye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed.
It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

4) [FONT=&quot]Non BPA compliant signage[/FONT]

The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. Furthermore, the signs are not lit which renders reading them at night impossible. As at the time the Parking Charge was incurred (XX/XX/XX XX:XX) it was dark and therefore not possible to see any signs which is not compliant with the BPA standards.

The Operator needs to show evidence and signage map/photos on this point - specifically showing the height and lighting of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

5) [FONT=&quot]Keeper Liability Requirements and the Protection of Freedom Act[/FONT]

As keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge. In regards to the notices I have received Parking Eye has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver). In their parking charge notice letter at no point did they actually invite me as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact I am under no legal obligation to do so). The wording of the PCN actually makes it sound like I have little choice but to give up the driver and does not actually state the choice to pay it myself. I would also like to point out that the Act stipulates that the parking company must provide me with the period the car was parked. I would strongly argue that the format of evidence provided (photographs from a number plate recognition camera showing the vehicle enter and leave the car park) is not actually valid or sufficient on its own as a form of evidence. Parking Eye should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do.

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6) [FONT=&quot]The charge is punitive and not a genuine pre-estimate of loss[/FONT]

Judging by the wording of the parking charge notice this is clearly an attempt to enforce this charge under paragraph B 19.5 of the BPA Code of Practice in which it states that this must be a genuine pre-estimate of the loss that may have incurred. ParkingEye Ltd claim that my car was in the car park for 15 minutes. They are asking for a charge of £100 for this penalty. This alone is far more than the cost to the landowner could have loss for the time my car was said to have parked there. The charge is clearly punitive and disproportionate to any alleged breach of contract.

Furthermore as the operator is clearly seeking to impose a penalty, it is their sole responsibility to provide a full breakdown as proof of the pre-estimated loss of £100. As of this point they have made no effort to provide me with a breakdown of the costs they allegedly incurred. To justify the charge of £100, I require ParkingEye Ltd to back up their decision by providing POPLA with a full and detailed financial breakdown of the pre-estimated costs they have suffered as a result of the charge in question. I would like to add that normal costs of running their business (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as ParkingEye Ltd would need to pay these irrespective of this alleged charge. Parking enforcement costs cannot possibly represent any loss resulting from an alleged breach of contract, as these costs would need to be paid whether the breach had happened or not.




In summary not only is the £100 charge completely disproportionate meaning that it is punitive and is breaking the Unfair Contract Terms Act 1997, but there can be no loss shown at all as no pre-estimate charge has been put together making the charge unenforceable against me or the driver.

I respectfully request that this parking charge notice appeal be allowed and await your decision.

Redx

I am mixed up here, as any cash machines I referred to would be on a pay and display car park, where you put cash in and get a ticket, I think you mean hole in the wall cash machines now, totally irrelevant and better if you had not mentioned them and they werent in your original post either

stick to the grace periods and quote clause 13 as meaning the vehicle was on site for less that the grace times for in , park and exit