ParkingEye - Fined despite paying

Edna_Basher

In order to comply with the Protection of Freedoms Act 2012, ParkingEye's Notice to Hirer had to be accompanied by certain documents (e.g. a copy of your hire agreement with the lease company and a copy of the Notice to Keeper that ParkingEye first issued to the lease company).

I'm sure that C-M is right - ParkingEye will not have sent you these documents.

This means that they cannot hold the hirer liable and have now restricted their claim only to the driver. Their problem is that they don't know who the driver was and you have no obligation to tell them. Hence why it is so important that you appeal as Hirer / Lessee.

I also predict a winning POPLA appeal, especially with the help you'll receive from this forum

sa22ie

Hi guys - Thank you so much for supporting people on here. It's really reassuring to have some people who are straight talking and friendly.

ParkingEye rejected my original appeal and I have been doing some further reading.

I think I can reject on the grounds:
- Misleading tariffs and signage
Unclear about parking charges 6pm.
- No genuine pre-estimate of loss.
I over stayed 12 minutes due to figuring out the signage and asking another driver and a near by business. (a little concerned about them quoting PE vs Beavis & Wardley)
- Proprietary Interest
No evidence of who the landowner is in any documentation.
- The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
'Offence' took place on 25/11/15 PCN issued 5/1/16.
No other docs included with the PCN eg. Lease.

I've found a drafted letter from B0nex posted - 1 Nov 15 in thread "PCN Aire Street Leeds" I understand this hasn't been given an answer yet by POPLA. I was going to use similar wording.

My concern is that I have no proof at all that I paid as it was cash and a ticket, which I didn't keep (lesson learned).

Do you think I'm approaching this the right way? Anything else you think I should consider?

Thanks again for your help.

Sarah

Coupon-mad

I think B0nex' example is now too old. POPLA arguments are being improved every week right now. I just replied on B0nex's thread because I was worried he had NOT done enough yet! Rebuttal is vital if they contest and supply an evidence pack.

Have a look at the Beavis arguments in recent ones on the first few pages here, go back maybe 4 or 5 pages clicking on any ParkingEye POPLA thread titles. Canvey Island springs to mind as a PE one replied to yesterday where the Beavis argument has been covered in depth as regards a Pay and Display car park 'not being comparable to Beavis' because the Judges said such contracts are 'entirely different'.

My concern is that I have no proof at all that I paid

Doesn't matter, many don't have the P&D ticket. I hope you haven't named or implied the driver? It's not about saying who paid/parked!!

Anyway start looking at PE POPLA appeals on the first few pages and you will the arguments as they now look. Tweak the wording to suit your case - e.g. change times, dates, specific details may have to be removed because you can't quite copy one verbatim but it won't be too difficult because there are some similar ones!

sa22ie

Hi again - My lovely Husband has helped me with this as this stuff all goes over my head when trying to read it.

Please can you give it a read over and let me know your thoughts? I need to submit in the next couple of days to comply with the timelines.

Thanks again
Sarah

Re: Parking Eye PCN, reference code
POPLA Code

I shall begin by explaining the situation of how I was, as a keeper of the vehicle XXXXX, issued with a £100 parking charge notice (PCN) from ParkingEye. I am the registered keeper of the vehicle and this appeal will probe that I am not liable for the parking charge.

The driver parked in the Aire Street car park in Leeds on XXth November 2015 and purchased a ticket for a 4 hour stay which commenced at 18.25 and expired at 22.25. The driver had never used this particular car park before and returned to the car at the time of expiry, loaded up ready for the journey back home.


On the 7th January 2016 a PCN was received explaining that £100 was due and the total time in the car park was 4 hours 12 minutes. This was very upsetting and shocking to have received this PCN as a ticket was purchased for the correct period of time. ParkingEye have stated that the arrival time in the car park recorded by the APNR was 18:12 so the first 15 minutes was taken up finding a parking space, attempting to purchase a ticket, asking for assistance in understanding the parking tariff after 6pm from both a stranger and at a nearby establishment “White Cloth Gallery”, purchasing the ticket and finally returning to the car to display the ticket (surely this cannot count as extra time ‘parked’ in the car park). This accounts for more than the 12 minutes they have stated that has been beyond the allocated time paid for. Additionally after the stay had ended there was a period of around 5 minutes that was taken with loading the car and getting ready for the journey home, followed by attempting to leave a car park in a busy city centre. This was not extra time parked as implied by ParkingEye and we are taking their word for it that the driver was 1 minute over the 11 minute Grace period. The entrance camera could be a minute or more out from the exit camera and either of them might not match the Pay & Display machine timer.


I submit the points below to show that I am not liable for the parking charge:

• Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.
• Inaccurate/Unreliable ANPR System
• The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
• No standing or authority to pursue charges nor form contracts with drivers.
• Unreadable signage – breaching Appendix B of the BPA code of practice
• Failure to supply notice to keeper within time limits established by Schedule 4 of POFA 2012
• The charge was not based upon a GPEOL and there is no justification for breach of the duty to allow grace periods.

Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.

The sign was ambiguous and unclear because the entire sign is about 'PARKING TARIFFS' (not 'total stay') and the sign creates no obligations except to:

• 'enter your VRN correctly’ (it says 'you must' and the driver complied with that term).
• 'park within bays' (the driver complied with that term).
• 'Blue Badge holders - tariffs apply' (OK, but not relevant and not an obligation upon us).

The only place the word 'stay' is mentioned on the sign is where it talks about maximum stay of 14 hours, the rest is all about 'parking time'. So as the P&D machine is the 'point of sale' and the P&D ticket is the receipt upon which an ordinary consumer would rely for the parking time, there was no contravention of the sign. The only contract agreed was to pay the tariff and return before expiry.

It is wholly deceptive and unfair on drivers to impose a different time limit from cameras, than the time limit set on the Pay and Display ticket.

Deceptive information which causes a consumer to take a different decision than they would have done, which then causes them detriment, is unlawful under the 'misleading actions' section (7.3) of the CPUTRs.

This was undoubtedly a ‘concealed pitfall or trap’, which resulted in a disproportionate and unfair charge which placed an unfair burden upon the driver, breaching Schedule 2 of the UTCCRs and the Unfair Contract Terms Act:

‘’SCHEDULE 2 Regulation 5(5) INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE
REGARDED AS UNFAIR - 1. Terms which have the object or effect of –

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;
(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract...’’

Unfair Contract Terms Act 1977:
‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

I would also mention the case in 2014 at Altrincham County Court: 3JD08399 PE v Ms X. Fistral Beach. It was found that 31 minutes driving around looking for a space was not classed as parking and therefore there was no contravention of the parking terms and conditions.

In our case, the driver relied upon the expiry time on the Pay and Display ticket. We returned to the car in time so complied with all the P&D machine terms and the driver NEVER agreed nor accepted any contract to pay £100.

Obviously if drivers had any idea their P&D ticket would not be the time under which they would later be bound and that the operator held all the cards with a secret timing already working against them, they would not park at this car park at all because this is contrary to good faith.

In the Barry Beavis v Parking Eye 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.

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 and if we knew then what we know now the driver would never have entered a ParkingEye run car park and never will again.

A Pay & Display machine system is incompatible with ANPR enforcement; an operator cannot run two systems with two timings and favour the one which operates disadvantageously to consumers.

Under the Consumer Rights Act now enacted, the question of unfairness in any consumer contract must be considered by the Courts (whether a consumer raises this issue or not) and therefore by definition, should also be a consideration of an ADR prior to court. It is suggested that it would be unjust if POPLA were to settle on anything less than a consistent approach: i.e. that any PCNs where operators have acted or operated unfairly, like this one, should be cancelled.

This was no agreed contract and the sum is unfair, unreasonable and unrecoverable.

ParkingEye may contest that they use the ‘widely recognised’ symbol consistent with ANPR parking however I counter that their point by saying as a reasonably well-informed and diligent person, the driver did not recognise such symbol nor could they be expected to. Such a symbol is so generically usually used for the safety and security in all manor of environments and it by no means generates the assumption that your ‘stay’ in the car park should be limited by anything other than what’s on your P&D ticket.

Inaccurate ANPR System

The rules of the BPA require you to allow a grace period of at least 11 minutes either to allow a motorist to read the signs and make payment or decide whether parking is permitted, and at the end of a period of paid for time or maximum stay to allow for discrepancies in the time shown on different devices. A reasonable grace period should be granted and should be fair so no one is discriminated against i.e. those with small children or disabled people - see below clause 13 of the BPA COP:-

Breach of the BPA Code of Practice regarding Grace Periods: 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:

Prior to parking:-

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.

Upon returning to the vehicle:-

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 11 minutes.

On the evening in question the driver was unclear as to the parking charges after 6pm and so walked to the nearby establishment “White Cloth Gallery” to establish the correct payment. This constitutes the entire duration of the period over that which was paid for by the keeper. The ANPR did not take this into account. In addition to this period, there was an additional period after which the driver was loading up the car and preparing for the journey ahead. The period prior to paying for a ticket cannot be taken as time parked, and the period after parking falls within the grace periods specified.

On photographic evidence from an Automated Number Plate Recognition (ANPR) system. The ANPR cameras are not identified upon entry to the car-park. Although these systems have a reported high accuracy rate, there is well recorded evidence of them being prone to error and inaccuracy. Photographs produced as evidence by them, can be easily digitally altered. They do not prove the identity of the driver. Simple entry and exit photographs purported to be from the stated car-park do not prove unquestionably that the vehicle actually; entered and left it; parked within its boundaries, and remained parked within it for the alleged time. On the day in question I believe the vehicle exited within the grace period time, Aire Street is a busy road on the approach to the entrance to one of the UKs busiest railway stations meaning you cannot safely stop to consider the signs before entering the car park and to exit onto the busy road takes caution so the driver could well have been sat in the car at the exit for a period of time until it was safe to exit.

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! The PCN sent provides no such clarity and does not mention the correct fare that should have been in such a situation. I would posit that this is because the terms are so byzantine that it would be near impossible to create a clear set of instructions for potential customers.

I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

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.

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.

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

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous 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.

Failure to supply notice to keeper within time limits established by Schedule 4 of POFA 2012

The Date of the alleged infringement was 25/11/15 and the keeper was not the recipient of the Parking Charge Notice until 07/01/16 (PNC dated 05/01/2016) – a delay of 44 days. This is clearly contrary to scheude 4 of POFA 2012 which dictates:
(4) The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

This is a delay of 30 days, resulting in a period over 300% beyond that which is prescribed above.

The signage was not readable so there was no valid contract formed between ParkingEye and the driver

The only signs are up on poles (away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions). Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the ParkingEye signs are one of many pieces of information in the clutter of this busy customer car park. Consider the difficulty someone with a learning difficulty such as dyslexia may have when trying to decipher such a volume of confusing information. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day (well after sunset) without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear 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.

The charge was not based upon a GPEOL and there is no justification for breach of the duty to allow grace periods

This case is an unfair penalty and differs from the 'Beavis v Parking Eye' judgment.

The charge is for an alleged (but denied) breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified, that this non-landowning third party can claim a sum in excess of any damages. However, no such GPEOL or justification can apply here.

Unlike in Beavis, it is confidently argued that this charge has been artificially inflated and ParkingEye have failed to disengage the 'penalty rule' by virtue of a want of good faith and a failure in their duty to deal fairly with consumers and a failure to follow the requirements of their industry Code of Practice. £100 is hugely disproportionate to any alleged unpaid tariff and there was no unpaid parking time in any case.

This concludes my POPLA appeal.

Fruitcake

I have only skim read that, but you have said you are the registered keeper whereas I think the registered keeper will be the lease company and you will be "the keeper/lessee."


I'm sure there are hire/lease PoPLA appeals around so you need to sort that bit out at least.


I think your Failure to supply NTK ... is wrong. Parking lie may have sent the NTK to the lease company who are the registered keeper within the timescales, and may have then contacted you (the lessee) within the prescribed timescales for a notice to hirer/lessee. You will have to recheck those dates.
You have not mentioned that parking lie didn't meet the requirements of POFA 2012 with regards to a notice to hirer/lessee. Did they send you a copy of the hire agreement and original PCN? If not, those are the points you should be using, not the ones you have used.

sa22ie

Not sure if I understand this correctly, am I not still the registered keeper? Just not the vehicle owner.

The_Deep

Whether you named the driver or not is of little consequence here, although some members get very hung up about it. The facts are YOU paid and the signs were confusing.

Should this get to court that would be enough to get the case thrown out. All the other stuff, contracts, standing, losses, Beavis, etc. are superfluous.

Read Excel v Martin Cutts.

Fruitcake

sa22ie wrote: »

Not sure if I understand this correctly, am I not still the registered keeper? Just not the vehicle owner.

Is your name on the V5, or that of the lease company?



Did the PCN (NTK) come direct to you, or was one sent to the lease company who then gave parking lie your details as lessee?

If the former, you are the registered keeper, if the latter you are the keeper and the lease company is the registered keeper.

Different wording is needed if you are appealing as lessee because different timescales apply to meet POFA 2012 requirements, and that will depend upon whose name appears on the V5.

Quentin

sa22ie wrote: »

Not sure if I understand this correctly, am I not still the registered keeper? Just not the vehicle owner.

Yes you are the RK. (assuming you are on the V5)

And as far as dealing with this you should remain the RK and don't hand them unnecessarily that you were the driver!


(The advice you got in #9 is not to be ignored!!)

Fruitcake

The initial paragraphs of your appeal tell a story, and a confusing one at that. You also state that the driver spent 15 minutes up front searching for information/change etcetera. Parking lie could counter that by saying the driver should have left if they weren't sure of the parking charge or signage.


There is no minimum grace period in the BPA CoP, just that there should be one. Parking lie will most likely say that fifteen minutes is too long to be considered a grace period, so you are better off not mentioning the fifteen minutes at all.


If the PCN was for an alleged overstay of 12 minutes (you haven't clearly explained what the PCN "offence" actually was) then you mention two grace periods, one before (unspecified) and one after that the BPA says should be at least eleven minutes. So, twelve minutes total grace period is not unreasonable when you mention how confusing the signs were to the driver.