Think I've messed up parking eye

Kimberalex

Fruitcake wrote: »

Kimberalax, you are a star of the first order. That is one of the best PoPLA appeals I have ever seen, (not that I am an expert mind .) One minor typo I picked up is in section 18.2 paragraph 5,


not compliant,i.e.


needs a space after the comma. Very picky I know but it is so good it would be a shame not to make it perfect. I can see this one being used an egg-sample to others. :T


Obviously don't forget to put the real PCN numbers etcetera in before you send it off.

I can't take ful credit it for it ampersand has taken time to help reword it. I'm overwhelmed by the kindness and help I've received on here I will make the correction now

Kimberalex

salmosalaris wrote: »

Strengthen with something like this possibly ?

The Appellant denies there was a breach of contract even if a contract ever existed which is denied.
The operator has provided no evidence whatsoever that the vehicle parked for longer than the maximum permissible time . They have simply provided two timings taken at arbitrary points on entry and exit of the car park . As the driver was not made aware of these timings or where they were being taken , it is impossible to rely on them as the start and finish times of any purported contract. The terms and conditions on the signage refer to parking contraventions within the bay , under the principle of contra preferentem it is reasonable for the driver to assume that the stay referred to on signage is the time occupying a bay . The driver does not believe that the bay was occupied for longer than the permissible time and puts the operator to strict proof that it was .
Such a contract would also be clearly unfair with reference to UTCCR 1999 as the terminology " max stay" is clearly ambiguous and the operator is operating without good faith to the detriment of the motorist by not making the driver fully aware of the start and finish times of the purported contract that they were purportedly bound by.
Reliance by the operator on grace periods is a meaningless , inaccurate and crude attempt to pay lip service to this obvious discrepancy.

Thank you for your reply and help.Which sub section would thi be applicable to? And I've also already kind of admitted I was over by saying the grace period after parking time was used to feed baby.

hoohoo

UTCCR 1999 has be overtaken by Consumer Rights Act 2015, so that bit would need changing.

I would also add.

x) No keeper liability
I am the keeper but was not the driver. ParkingEye have not fulfilled all the criteria of POFA 2012, sch 4 for keeper liability. 9.2.(i) sates the NTK must: (i) specify the date on which the notice is sent (where it is sent by post) or given (in any other case).

ParkingEye use a third party to send their mail and therefore the date on the notice to keeper is not sufficient to satisfy the requirements of the act, as it is the date the ntk was commissioned from the 3rd party, nto the date it was actually posted. If ParkingEye believe otherwise, they are put to strict proof.

catfunt

hoohoo wrote: »

UTCCR 1999 has be overtaken by Consumer Rights Act 2015, so that bit would need changing.

I would also add.

x) No keeper liability
I am the keeper but was not the driver. ParkingEye have not fulfilled all the criteria of POFA 2012, sch 4 for keeper liability. 9.2.(i) sates the NTK must: (i) specify the date on which the notice is sent (where it is sent by post) or given (in any other case).

ParkingEye use a third party to send their mail and therefore the date on the notice to keeper is not sufficient to satisfy the requirements of the act, as it is the date the ntk was commissioned from the 3rd party, nto the date it was actually posted. If ParkingEye believe otherwise, they are put to strict proof.

The OP has already admitted being the driver in her appeal to PE.

ampersand

Hello again K, have driven out again to area with connectivity:-)
Have jotted the final fine-tuning points and will email them later this evening. Some formatting seems to be lost and& is manic with grammar, spelling & 'the graces of style', as such professional necessities were once called.
Back to earlier maxim: we are in the business of making Assessor your friend.
Hope this goes from phone again.

ampersand

Have just em'd it, Kimberalex.
I see c-m has been by again. Let her dbl-check please :-)
Phone not responding earlier, so hope this posts.

Kimberalex

> Appeal against PCN no.123456789
> Veh. Reg.
> Date:
> Location:
>
To Whom It May Concern:

Please accept the following POPLA Appeal against the parking event cited above on the following grounds.

1. Breach of Equality Act 2010

2. Failure to observe Mandatory Grace period

3. No Valid Contract with the Landowner / Land-holder

4. ANPR accuracy

5.Non-compliant signage. Failure to adhere to BPA Code of Practice.

6. No genuine pre-estimate of loss

# In turn:

1. Breach of the Equality Act 2010

The driver of the car is a breastfeeding mother and, as such, in a protected category under the Equality Act 2010. ParkingEye were informed by an appeal email on the 26/11/2015 the driver was a breastfeeding mother.

Simply, baby needed nursing which caused this alleged 14-minute 'overstay'.

The Equality Act 2010 states that breastfeeding is a protected characteristic. It is unlawful to discriminate or to harass anyone in a protected characteristic category. In this case, the nursing mother and baby were in a discreet area, a safe place, not blocking, hindering or endangering any person or vehicle.

Baby was simply, quietly, feeding - exactly what the Equality Act 2010 is intended to protect.

It states that to treat a woman unfavourably because she is breastfeeding, is sex discrimination. It applies to anyone providing services, benefits, facilities and premises to the public, public bodies, Further and Higher Education bodies and associations. Service providers include most organisations that deal directly with the public. Service providers must not discriminate, harass or victimise a woman because she is breastfeeding.

Discrimination includes refusing to provide a service, providing a lower standard of service or providing a service on different Terms.

Despite being informed that the driver was a breastfeeding mother, ParkingEye continue to harass the driver, insisting that their speculative invoice number 12345679 for £85 must be paid.

The retailer and ParkingEye have both been put on notice that they are in breach of the Equality Act, section 17.

Popla Assessors are well aware of the importance of this section and its varying exemption categories, including the one which is applicable here.

2. Permitted Grace Periods

The BPA Code of Practice requires that 2 periods of grace time must be allowed:
> [a] upon entry and
> upon exit.

It is wholly unreasonable and a breach of the CPUTRs (misleading action) for ParkingEye to ignore their own industry’s Code, which states:

13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.

13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.


ParkingEye have neither specified, nor allowed, a sufficient grace period at the beginning nor have they specified or allowed a suffice to grace period at end of time parked. Circumstance[breast-feeding] necessitated what they now term a 10-15 minute 'overstay' and I put ParkingEye to strict proof of the contrary.

3.Contract with landowner - no locus standi

ParkingEye neither own, nor have any interest in, nor assignment of title to, the land in question. Therefore, ParkingEye lacks any legal capacity to enter into a contract with a driver parking a vehicle in this ‘free’ car park, or, indeed, to allege a breach of contract.

Accordingly, I require sight of a full copy of the actual contemporaneous, unredacted contract, signed and dated by the Landowner or landholder, not merely some signed slip of paper purporting to say that such a contract exists.

Some parking companies provide signed chits, termed 'witness statements' of the necessary relevant contract. These do not prove in any way, or degree, that an alleged signatory has ever seen the relevant contract, or is even a bonafide employee of the Landowner or landholder, let alone party to such a contract.

Such ‘’witness statements’’ do not reveal whether a payment has been made from either party within the agreement/contract which would affect any alleged 'loss' calculations. Nor do they show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow ParkingEye to pursue these charges in their own name. as creditor in the Courts, and to grant them the standing/Assignment of Title, to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'.

This witness statement concerned evidence which could have been produced but was not.

So, if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid in the interests of fairness and consistency.

ParkingEye must produce a full,
underacted and contemporaneous contract for all these stated reasons. I contend that this Operator's authority is limited to that of a mere parking agent.

I believe it is merely a standard business agreement between ParkingEye and their principal, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no.3JD00517 ParkingEye v Clarke [19 December 2013] heard before Deputy District Judge Buckley at Barrow-in-Furness, 19 December 2013.

That judgment is now in the public domain.

'' Deputy District Judge Buckley ruled that the letter of authority which allowed ParkingEye to manage the car park did not allow them to take proceedings in their own name. He ruled that the 'commercial justification' arguement that ParkingEye used to justify their own profit was invalid because they could not show any financial loss due to the breach of contract; in fact they make a profit from the breach of contract. The judge referred to the situation as 'bizarre'.''
[with thanks to Mr Clarke who made the judgment available and Mr Shipp for the summary.]

4)ANPR ACCURACY

APNR marks the time on site, not parking periods.

Operators must ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice.

I require the Operator to 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 produces specific, relevant evidence in response to these points. ParkingEye must also explain to POPLA how its system differs, if at all, from the flawed ANPR system which was wholly responsible for their Court loss in ParkingEye v Fox-Jones [8 November, 2013.]

That case was dismissed when the Judge said the evidence from the Operator was 'fundamentally flawed', as the synchronisation of the camera pictures with the timer had been called into question and ParkingEye could not rebut the point.

In addition to showing their maintenance records, I also challenge ParkingEye to rebut this point in relation to this parking event.

In the case of vehicle reg.xxxx in this car park on [date], 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: "live" is not really "live". Without a synchronised time stamp, there is no evidence that the image is ever time-stamped with an accurate time. Therefore, I contend that this ANPR "evidence" from this Operator in this car park is unreliable and I put this Operator to strict proof to the contrary.

5) Non-compliant Signage and Failure to adhere to the BPA Code of Practice.

ParkingEye signage does not meet the minimum requirements for compliance as laid down in part 18 of the Code:

‘’18.1
A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.

18.2
Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area.

Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.

Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

A standard form of entrance sign must be placed at the entrance to the parking area. There may be reasons why this is impractical, for example:
-when there is no clearly defined car park entrance
-when the car park is very small
-at forecourts in front of shops and petrol filling stations
-at parking areas where general parking is not permitted.’’

The attached contemporaneous photos prove that the sign in the entrance is not compliant, i.e. legible to a driver. Being at a junction entrance in a small carpark, it cannot be read without causing extreme traffic congestion. It is also very dangerously placed, being in a busy doorway entrance which is also the Fire Exit of Home Bargains.

The other sign, allegedly displaying compliant terms and conditions, was discovered on a subsequent visit, was some 8 feet up on a lamp-post [see photo].

Both signs are completely unintelligible, due to non-compliant height, small type and dense, obtuse wording. Even using a step-ladder and torch, reading and absorbing this Operator’s Terms and Conditions is likely to cause an accident, illegal blockage of the Fire Exit, blockage of the walkway, or a combination of these.


Even one failure means that the conditions required by the BPA have not been met: this Operator fails multiply and completely.

I challenge ParkingEye to prove otherwise from the contemporaneous photos provided.

5) No genuine pre-estimate of loss.

Chapter 4 of the newly enacted Consumer Rights Act 2015
http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted

is strong in Sections 54 and 57:
What remedies are there if statutory rights under a services contract are not met?
54.Consumer’s rights to enforce terms about services

Can a trader contract out of statutory rights and remedies under a services contract?
57.Liability that cannot be excluded or restricted

Definitions and remedy are dealt with in Chapter 5: 'General and Supplementary Provisions'
58.Powers of the court
59.Interpretation
60.Changes to other legislation

Part 2, which follows, is key. Here, Clauses 61-71 deal entirely with unfair terms, remedy and definition.
What contracts and notices are covered by this Part?

61.Contracts and notices covered by this Part
What are the general rules about fairness of contract terms and notices?

62.Requirement for contract terms and notices to be fair
63.Contract terms which may or must be regarded as unfair
64.Exclusion from assessment of fairness
65.Bar on exclusion or restriction of negligence liability
66.Scope of section 65
67.Effect of an unfair term on the rest of a contract
68.Requirement for transparency
69.Contract terms that may have different meanings

How are the general rules enforced?
70.Enforcement of the law on unfair contract terms

Supplementary provisions
71.Duty of court to consider fairness of term

From these, please note 62. 7 [a] and state:

(7)Whether a notice is fair is to be determined---

(a)taking into account the nature of the subject matter of the notice, and

(b)by reference to all the circumstances existing when the rights or obligations to which it relates arose and to the terms of any contract on which it depends.

It is clear that this charge is a penalty and not a genuine pre-estimate of loss, let alone a valid one. This would apply, even were the driver not in a protected characteristic category as defined by the Equality Act 2010.

In its parking charge notice, ParkingEye failed to provide sufficient evidence to justify or substantiate an £85 loss to the Landowner or Landholder, incurred from an alleged 14-minute 'overstay', in fact, breastfeeding time.

The property is a so-called ‘free’ car park, without restriction, or exemption of its possible use by a breastfeeding mother and baby.

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 £85.

Normal expenditure the company incurs to carry on its business cannotbe 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.

This concludes my appeal. Thankyou for your attention.

Yours faithfully

PLEASE NOTE: I am typing on my iPhone as my laptop is completely pre historic, it is not showing bold or italics I can assure they are in there. Thank you to ampersand again for the help.

Coupon-mad

Nice Consumer Rights Act effort (I haven't checked it against the Act but you are one of the first people to attempt that so well done!).

Remove this, it's ancient and unnecessary now:

I believe it is merely a standard business agreement between ParkingEye and their principal, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no.3JD00517 ParkingEye v Clarke [19 December 2013] heard before Deputy District Judge Buckley at Barrow-in-Furness, 19 December 2013.

That judgment is now in the public domain.

'' Deputy District Judge Buckley ruled that the letter of authority which allowed ParkingEye to manage the car park did not allow them to take proceedings in their own name. He ruled that the 'commercial justification' arguement that ParkingEye used to justify their own profit was invalid because they could not show any financial loss due to the breach of contract; in fact they make a profit from the breach of contract. The judge referred to the situation as 'bizarre'.''
[with thanks to Mr Clarke who made the judgment available and Mr Shipp for the summary.]


See what others say as well. I haven't had time to read it all.

josingh20

salmosalaris wrote: »

Strengthen with something like this possibly ?

The Appellant denies there was a breach of contract even if a contract ever existed which is denied.
The operator has provided no evidence whatsoever that the vehicle parked for longer than the maximum permissible time . They have simply provided two timings taken at arbitrary points on entry and exit of the car park . As the driver was not made aware of these timings or where they were being taken , it is impossible to rely on them as the start and finish times of any purported contract. The terms and conditions on the signage refer to parking contraventions within the bay , under the principle of contra preferentem it is reasonable for the driver to assume that the stay referred to on signage is the time occupying a bay . The driver does not believe that the bay was occupied for longer than the permissible time and puts the operator to strict proof that it was .
Such a contract would also be clearly unfair with reference to UTCCR 1999 as the terminology " max stay" is clearly ambiguous and the operator is operating without good faith to the detriment of the motorist by not making the driver fully aware of the start and finish times of the purported contract that they were purportedly bound by.
Reliance by the operator on grace periods is a meaningless , inaccurate and crude attempt to pay lip service to this obvious discrepancy.

This is good advice. I have made reference to similar argument in my own case against PE/Smart Parking.

Kimberalex

But isn't UTTCR outdated now as specified by coupon mad and replaced eight the consumer rights act?