Think I've messed up parking eye

ampersand

Trying again to post from phone - 1st time ever. Draft finished at 3.30 then saved, deo gratias,but "Administrator has blocked this IP address" is stopping me post it. Will try later

ampersand

Still not working. Using phone again. 'Something has gone wrong.'in a little box. All else works.

Kimberalex

1. EQUALITY ACT 2010

2. Grace period

3. Contract with the landowner

4. ANPR accuracy

5. Signage and Failure to adhere to the BPA code of practice.

6. Genuine pre-estimate of loss


1)EQUALITY ACT 2010

The driver of the car was a breastfeeding mother. ParkingEye have been previously informed via appeal to ParkingEye that the driver was a breastfeeding mother due to baby needing nursing this caused the 14 minutes over stay.

In THE EQUALITY ACT 2010 it states that breastfeeding is a protected characteristic, it is unlawful to discriminate or to harass anyone in the protected. The nursing mother and baby we're not in a dangerous place, just in the car feeding.

THE EQUALITY ACT 2010 states that it is sex discrimination to treat a woman unfavourably because she is breastfeeding. It applies to anyone providing services, benefits, facilities and premises to the public, public bodies, further and higher education bodies and association. 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.

ParkingEye have been given the information in the appeal driver was a breastfeeding mother and have still continued to harass the driver by sending parking invoices.

This will be taken further with the unlawful breach of the EQUALITY ACT 2010 by Home Bargains and ParkingEye.

2. Grace period

The BPA Code of Practice requires that additional time upon entry and further time upon exit, is to be allowed. It is wholly unreasonable and a breach of the CPUTRs (misleading action) for ParkingEye to ignore their industry code, which states re grace periods:

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 not given a grace period on the end of the time parked, which I believe would be between 10 or 15 minutes and put parking eye to provide strict proof of the contrary





3.Contract with landowner - no locus standi

ParkingEye do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that ParkingEye has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the 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 with the landowner (and not just a signed slip of paper saying that it exists).

Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Parking eye 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.

So I require the contemporaneous contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between PEA and their client, 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 19th December 2013 (Transcript linked): nebula.wsimg.com/0ce354ec6697...&alloworigin=1

I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

In other words, they are not, as the Operator asserts, a contractual term.

4)ANPR ACCURACY
APNR marks the time on site and not parking periods.

This Operator is obliged to 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 must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as 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 the Operator in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary.

5) Signage and Failure to adhere to the BPA code of practice.

The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.

Quote the BPA code of practice


18

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 forTransport guidance on this.


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

I have supplied photos that prove the sign in the entrance is not readable by a driver as it is placed upon the shop wall at junction entrance, in a small carpark and cannot be read without causing extreme traffic problems. Many would find this dangerous. It is allocated in a busy door entrance and fire exit to the store Home Bargains.

The other sign displaying terms and conditions, is high up on a lamppost as shown in photographic evidence, which both signs are completely intelligible and incredibly complicated to read the terms and conditions without causing a possible accident, blockage of fire exit or block the walkway.

As shown in both photographs neither signs are lit. Neither signs are sufficiently lit by street lampposts.

The terms and conditions are in small print completely intelligible 7/8ft up a lamppost or in a shop doorway/fire exit. As a result these conditions stated by the BPA have not been met.

I challenge ParkingEye to prove otherwise from these photos provided.

5)No genuine pre-estimate of loss.

The charge is a penalty and not a genuine pre-estimate of loss. In its parking charge notice, ParkingEye fail to corroborate any loss much less than £85. They provide no valid evidence of any loss.

Only the landowner/ landholder would be entitled, and only then were the driver not in a protected category as per the Equality Act 2010.

The driver, as a breast-feeding mother, is in a protected category, as defined in Section 17 of that Act. This is the applicable circumstance which lead to 4 minutes' alleged overstay.
In this case, ParkingEye allege a 14 minute overstay, ignoring the mandatory 10 minutes prescribed in the BPA Code of Practice 13.4.
To reiterate, any penalty a landowner or landholder- ParkingEye are neither - might seek in a 'free car park', would still fail against a mother breastfeeding her baby.

When specified in point 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.

Parking
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.


This concludes my appeal

I think I've amended what was asked I'm not sure if it worth quoting that point in the consumer rights act as above?

Ampersand I took part of what you said re worded a tiny bit as I didn't want you to think I was cheeky copying and pasting I can delete it if you like

Umkomaas

I've not re-read the whole thread, but here are a few comments from me on your draft POPLA appeal.

1. Grace Period. I wouldn't be arguing that it was only 4 minutes over the 10 minutes at the end of your stay. You need to build in the fact that a 'reasonable' grace period be provided at the commencement of parking to orientate yourself with the car park, find a space, go to read the signage and decide if you wish to accept the terms of parking. At the end of parking a grace period of a minimum of 10 minutes be provided. So you need to argue that a total 14 minute 'overstay' was easily consumed under the term 'Grace Period' and is covered by the CoP's total Grace Period requirements placed on ParkingEye. This is what the CoP says - use it to prove your point here.

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 speci c 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. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

You also need to make the point that the car park management procedure adopted by PE is solely via static ANPR cameras mounted at the entrance and exit point. They monitor just that - entrance and exit; they do not monitor actual parking. There is clearly a timing difference between entry and exit and the timing of actual 'parking'.

2. You refer to a completely different outfit in the following. PEA is 'Parking Enforcement Agency' - nothing to do with ParkingEye.

So I require the contemporaneous contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between PEA and their client, 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 19th December 2013 (Transcript linked): nebula.wsimg.com/0ce354ec6697...&alloworigin=1

You need to change that. Also I'm not sure what (Transcript linked):'nebula.wsimg.com/0ce354ec6697...&alloworigin=1' refers to. Where is the transcript - that link doesn't work? Was this just a blind copy and dump? You need to make sure the entire appeal is watertight. This is your appeal - the more it looks like you've just snipped bits from others here and there and hoped for the best by sticking them all together, the lower the credibility of it all.

3. Signage. You mention lack of sign illumination. If your parking entrance time was in the hours of darkness, then leave it in, if not ...... not having sign illumination is not in itself a winning appeal point if a PCN relates to a daylight parking event.

You have made nothing of the ubiquitous block of minute text on PE signage. This forms part of any purported contract. The fact that block is barely readable 7 feet up a pole (especially if your parking event was in darkness) needs to be built in to any PE signage appeal. Back it up with a photo.

4. VAT

I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

2013 is no longer 'recent', but the main point I'm making here is that PE does have a (somewhat convoluted, but legitimate) VAT accounting process linked to the purported management fee with many of its contracting organisations. They do not appear to be VAT-dodging in the sense of penalty vs contractual charges. So unless you're a VAT expert and fully understand this section you've replicated, and can confidently argue it, then you're on shaky ground, emphasised more so by the fact you've not balanced your appeal point with the fact that much of the HMRC -v- VCS original decision was overturned by the Court of Appeal.

The entire section needs surgery!

If you've got some time left before your POPLA deadline, leave this up for 24 hours to see if there are any other comments, otherwise - after changes - send it away.

Don't miss the POPLA deadline or you're likely to be getting court papers during 2016.

HTH

Fruitcake

Kimberalex, you should be proud of yourself. You are doing an absolutely brilliant job with this on top of the day job of being a Mother.


Do not be disheartened by any criticism you have received. With the exception of one poster it was meant to be constructive so please take it in the spirit that it was intended, to help you.


Keep up the good work. You may not have realised it but yours is an incredibly important case. The regulars here have been trying to get an appeal upheld at PoPLA using the EA 2010 for years to no avail. The part where you mention the PoPLA assessor as being a member of a Service Provider should remain in as it may focus his or her mind on this point.
I've added a bit on the end as well.

I would remind the POPLA assessor that POPLA is also a 'service provider' to the public and has broadly the same duties under the Equality Act 2010 and the statutory EHRC Equality Act Code of Practice for Service Providers as the Operator and landowner/occupier client. The Chief Adjudicator will no doubt be familiar with these regulations and I am sure that all employees, including all POPLA Assessors, are trained in this law and know that they must demonstrate compliance when making decisions which affect disabled groups or individuals with protected characteristics.


You might want to change, are trained in the law to should be aware of the law.

Fruitcake

This bit needs a little work: -


1)EQUALITY ACT 2010

The driver of the car was a breastfeeding mother. ParkingEye have been previously informed via appeal to ParkingEye that the driver was a breastfeeding mother due to baby needing nursing this caused the 14 minutes over stay.

In THE EQUALITY ACT 2010 it states that breastfeeding is a protected characteristic, it is unlawful to discriminate or to harass anyone in the protected. The nursing mother and baby we're not in a dangerous place, just in the car feeding.


I suggest ...


1)EQUALITY ACT 2010

The driver of the car was a breastfeeding mother. ParkingEye have been previously informed via appeal to ParkingEye that the driver was a breastfeeding mother with a baby that needed nursing and this caused the 14 minutes over stay.

THE EQUALITY ACT 2010 states that breastfeeding is a protected characteristic. It is unlawful to discriminate or to harass anyone with such protected characteristics.


This is in addition to any grace periods that the parking operator must allow before and after the parking event has taken place, as defined in the BPA Code of Practice.

Fruitcake

As Umkomaas said, change the reference about PEA to Parking Eye. Include the relevant part of the transcript for the PE vs Clarke case, not the whole thing or a link to the whole thing. If you are pushed for time, just leave the reference to it.
Change case no. to case number (without the full stop.)


I don't know if the bit in red is relevant.



So I require the contemporaneous contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between PEA and their client, 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 19th December 2013 (Transcript linked): nebula.wsimg.com/0ce354ec6697...&alloworigin=1

I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

In other words, they are not, as the Operator asserts, a contractual term.

Fruitcake

ampersand wrote: »

In this case, ParkingEye allege a 14 minute overstay, ignoring the mandatory 10 minutes prescribed in the BPA Code of Practice 13.4.

I believe it is now 11 minutes as it has to be over 10 in line with council grace periods. I'm not sure if the CoP paragraph has now changed.


I think Redx is more knowledgeable about this so perhaps he can quote the relevant new bit if he is around.

Redx

coupon-mad or another regular indicated its now 11 minutes as the BPA had agreed in a meeting to state that it has to be OVER 10 minutes, this will be in a new CoP so not in the October CoP, so any appeal would state that the BPA rules indicate it has to be over 10 minutes, say 11 minutes, plus that BPA CoP also talks about a grace period before the parking time starts, this is assumed to be 10 minutes to either comply , or leave

so 2 lots of grace periods apply , the beginning of up to 10 minutes and the latter to leave as being of at least 11 minutes, so the OP argues that a total grace period would be say 21 minutes subtracted from the time on site , therefore the actual PARKING TIME is considered to be say 21 minutes less than the ANPR photos indicate, due to ANPR only showing time on site, not parking time

the OP has now been told about that PEA reference more than once so I am surprised its not been edited already

Fruitcake

Thanks for the clarification Red. I knew I had seen it somewhere.


Perhaps the OP is a bit busy with chrymble and young uns.