Parking eye/Aldi

Coupon-mad

Quote from here, OP now needs POPLA help:

https://forums.moneysavingexpert.com/discussion/5423377

LauraSt wrote: »

This is the draft of my appeal which I wish to send to POPLA.
I have a bundle of photographs to include with this which clearly show the signage ambiguity and discrepancies.

Any and all feedback gratefuully appreciated.
There is some urgency to this - my deadline is 3rd March. The rejection letter arrived almost 2 weeks after the date on it.

Thank you





Dear POPLA

Various details: Code etc.


As the registered keeper I am submitting this appeal.
Parking Eye do not have the identity of the driver, as was stated in the NTK.

Alleged overstay of 12 minutes
[FONT=&quot] [/FONT]
[FONT=&quot]I wish my appeal to be considered on the following grounds [/FONT]
[FONT=&quot] [/FONT]
1. Keeper Liability Requirements and POFA
2. No landowner contract or legal standing to form contracts.
3. Grace periods
4. The signage was not compliant with the BPA Code of Practice
5. No valid contract formed between ParkingEye and the driver
6. The charge is a penalty and not a genuine pre-estimate of loss.
7. ANPR

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

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 paragraph 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 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.

[FONT=&quot]The Notice has no 'date sent by post' nor a 'date given' which immediately renders it non-compliant with Schedule 4. It has what the operator describes as a 'date issued' which is neither of the two dates the Act requires. It might just about scrape through if the 'date issued' was in fact synonymous with the date of posting but it is not. The Notice did not arrive for 6 days after this purported 'date issued' because it is known that ParkingEye use iMail which only actually posts letters several days after the documents are prepared. The Notice must have been posted some three working days after their 'date issued' so the Notice does not comply with the statute as it omits either a 'date sent' or 'date given'.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The subsequent reminder was issued on a Saturday immediately preceding a public holiday, and did not arrive until after the discounted date.

The Notice also fails to explain the circumstances which caused the charge to arise, instead it suggests 'either' this happened 'or' that happened which to a keeper creates no certainty at all.

The Notice also fails to describe the parking charges which were due from the driver as at the day BEFORE the date of posting of the Notice. The meaning of 'parking charges' in this section of the Act cannot be the £70 because there was no mechanism for a driver to pay this sum, therefore it cannot be described as 'unpaid' before the PCN was posted to me, which was the first we knew of the matter.[/FONT]


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 of the parking period.

[FONT=&quot]8. 2) The notice must: [/FONT]
[FONT=&quot](a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates; [/FONT]


Failure to comply with statutory requirements prevents the operator from relying on the provisions of POFA to invoke Keeper Liability. As the operator has no evidence as to the identity of the driver this appeal should be upheld.


2. No landowner contract or legal standing to form contracts.
[FONT=&quot] [/FONT]
A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract.

[FONT=&quot]I do not believe the operator has the authority of the landowner to issue parking charge notices or take court action in their own name to recover them. This is a requirement of the British Parking Association Code of Practice to which the operator must adhere. I demand that the operator discloses a contemporaneous and unredacted copy of the contract between themselves and the landowner to show that they do. Failure to do so must result in this appeal being upheld. [/FONT]


[FONT=&quot] [/FONT]
3. Grace periods
The BPA Code of Practice allows for Grace periods with a minimum time of 10 minutes to leave after the parking contract has ended. Additionally a Grace period should be allowed so the driver can find a space to park.

[FONT=&quot]The letter from ParkingEye state “time in car park : 1 hours 42 minutes”[/FONT]
[FONT=&quot]It includes photographs which show arrival time (at a location which is unspecified) and departure time with the only identifying mark being a zebra crossing.

[/FONT]
[FONT=&quot]The signage states Parking limited to 1½ hours. A mandatory grace period of a minimum of 10 minutes is required by the BPA Code of Practice for the driver to leave the car park. Additionally a grace period is allowed for a driver to enter the car park and find a space to park. An alleged overstay of 12 minutes does not take grace periods into account. [/FONT]
[FONT=&quot] [/FONT]
“Maximum stay” does not cater for time taken to find a space, exit or allowing other drivers manoeuvre into or out of parking bays both on entry and exit as is a common courtesy.


There can be no allowance for a grace period for finding a parking space if “parking” begins on entry to site i.e. a maximum stay, when the vehicle is still in motion, unless the driver is specifically notified of the time of entry to the site, and expiry time and the grace period is added to the maximum stay time. Parking means a car is stationary in a parking bay.

By comparison the nearby Sainsburys supermarket has clear ANPR notices on entry and displays number plate and expiry time.
Photograph 1 (for comparison nearby Sainsburys car park which provides this information)
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]4. [/FONT]The signage was not compliant with the BPA Code of Practice [FONT=&quot][/FONT]

The signage is misleading, contradictory and inconsistent.
There are 2 entrances to the car park. One entrance is from a busy dual carriageway which has a sign informing drivers of a ‘maximum stay’; the other is from a busy road but there is no sign at this entrance.
The sign at the dual carriageway entrance states “Maximum stay for customers”.
Photograph 2
It is not specified on this sign that the customers should be Aldi customers. Signage within the car park specifies Aldi customers; the driver was an Aldi customer.
Signage within the car park states maximum parking time 1 ½ hours.
Photograph 3
As there is inconsistent signage, ParkingEye therefore fails to comply with the BPA Code of Practice. Does the signage mean cars entering at one location are not charged, or does it mean they are not informed they are entering a private car park? Drivers may be disadvantaged because of the entrance they use.

[FONT=&quot]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. [/FONT]


The signage has terms and conditions in small print that cannot be deemed readable before parking.

Signs are positioned at a height that renders them unreadable under normal circumstances.
The signage gives no hours of operation. It states neither the hours of operation nor does it specify that it is operational 24 hours per day.

[FONT=&quot]18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. [/FONT]
…[FONT=&quot].Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read [/FONT]
[FONT=&quot] and understand. [/FONT]

[FONT=&quot]The NTK letter states that the signage “states that the maximum stay is 1 hour and 30 minutes”. The appeal rejection letter states “This site is a maximum stay car park” as per the terms and conditions as detailed on the signage”. However there is contradictory information on the signage which states “Parking limited to 11/2 hours”.
There is uncertainty as to the terms of this stay – is it maximum stay from the point of entry which is some unspecified point and at some unspecified time or is it, as the signage within the car park says a maximum parking time? [/FONT]
[FONT=&quot]Additionally [/FONT]Schedule 4 of the Protection of Freedom Act requires the operator to provide details of the parking period, therefore suggesting that applying contractual terms to drivers at the point or time of entry may be illegal.



5. No valid contract formed between ParkingEye and the driver
[FONT=&quot]A driver would need to be informed of, and at the time, they had entered into a contract i.e. supposedly in this case at the time of entry to the site. Failing to provide this precise time means they entered into a contract unwittingly and without their knowledge and agreement. [/FONT]
[FONT=&quot] [/FONT]
Code of practice
18.5 Driver must have chance to read Terms & Conditions before they enter into contract with you…

If a contract begins at the point of entry to the site, the driver has not been afforded the chance to read the terms and conditions before entering into a contract, nor can they read said terms at the time of parking or leaving their vehicle if the terms appear to be already applicable because they have already entered the site, which they must do in order to be able to read the terms.

18.3 Signs must be conspicuous and legible and they have chance to read them at time of parking or leaving vehicle.

The small print on the signage says “By parking, waiting or otherwise remaining within this private car park, you agree to comply with these terms and conditions (the “Parking Contract”)”.
Parking means parking and not waiting or otherwise, whatever ‘otherwise’ might mean. A driver cannot enter into a contract where uncertainty exists. ‘Otherwise’ is clearly an uncertainty. Schedule 4 paragraph 9 of the Protection of Freedoms Act stipulates that a NTK can only be issued for a parking period, and does not include “waiting or otherwise”.

[FONT=&quot]A charge for an alleged breach (denied) of contract cannot be served on a driver when the terms of the contract are uncertain and unclear, and when different parameters are applied to the contract. One appears to be when you drive past cameras before you park, and the other appears to be when you stop the car in a bay and move out of it afterwards. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Cameras show entry and exit times but not period parked as per POFA [/FONT]
(2) The notice must—
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
[FONT=&quot] [/FONT]
[FONT=&quot]I note that the NTK gives the time between entry and exit given by the cameras but not the period parked as required by POFA. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Parking Eye is applying a contract in different parameters, contravening POFA and the BPA Code of Practice. The terms are unclear to drivers and therefore this is an Unfair Contract. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]20.5a When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered. [/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]

For the Registered Keeper to be liable for the Parking Charge, there must be a contract between the driver and an agent authorised by the landowner. To create a contract under English law there must exist: offer, consideration and acceptance.

The Parking Charge cannot be construed as consideration. It is a contractual penalty for failing to comply with the terms. This is evident from the wording of the signage, and is confirmed by being outside the scope of VAT. If it were an additional payment for goods and services (VATSC44000), it would be liable to standard rate VAT. As a fine or penalty (VATSC57600) VAT does not apply.

As a contract has not been established by an exchange of consideration, the contractual penalty cannot be invoked.




6. The charge is a penalty and not a genuine pre-estimate of loss.
[FONT=&quot] [/FONT]
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 ParkingEye' judgment.

The charge is for an alleged (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 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' and failed to follow the requirements of their industry Code of Practice.
[FONT=&quot] [/FONT]
ParkingEye claims that the car breached the terms and conditions of parking. The issue is the car park is free to Aldi customers (no specified amount to be spent in Aldi) and does not require you to pay for a ticket.
The BPA Code of Practice states:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.

I require ParkingEye to provide a detailed breakdown of how the amount of the charge was calculated and explain how this relates to a business loss for the landowner.
[FONT=&quot] [/FONT]
A previous Assessment dated 31st July 2013, POPLA stated:

[FONT=&quot]“The Operator has submitted that its charges have been held to be enforceable in previous cases; however, the Operator has not produced any evidence to justify this parking charge. The losses suffered by breaches of a parking contract may vary depending on the nature of the car park, and the nature of the breach. That a parking charge at a certain level is held not to be a penalty in one car park, does not mean that the same sum is a pre-estimate of the loss caused in every car park.” [/FONT]
[FONT=&quot]Aurela Qerimi
Assessor[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]7.[/FONT][FONT=&quot] ANRP [/FONT][FONT=&quot]
Camera equipment indicates entry and exit times but does not demonstrate the parking period.
The ANPR symbol is too small to be visible under normal driving conditions. Signs are not lit. On the day in question visibility was poor due to weather conditions which is evidenced by headlights lit on photograph. [/FONT]

[FONT=&quot]There is no surrounding contextual information to locate the position of the vehicle in the photographs in relation to the car park, apart from what appears to be a zebra crossing. [/FONT]
[FONT=&quot] [/FONT]
The ANPR cameras are not identified upon entry to the car park. 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.

[FONT=&quot]21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for. [/FONT]

The small print on the signage does not clearly state that the ANPR cameras will be used to determine length of stay on the site. This is not transparent. The ANPR symbol on the entrance sign is so small as to be barely visible to a driver entering the site from a busy dual carriageway, and appears to presume the driver recognises the symbol and will understand what it has been placed there for. The lack of signage at the other entrance means drivers entering there are unaware that ANPR techonolgy is in use at all.
Signage within the site does not state that cameras will be used to determine length of stay.
By comparison signage in the nearby Sainsburys car park clearly states this
(Photo).

Coupon-mad

This is the thread to reply on (the other one needs merging).

Salmosalaris has posted:

salmosalaris wrote: »

Point 6 needs changing .
And you must include :

The BPA CoP requires that the use of ANPR cameras and what the data produced by them will be used for is conveyed to the motorist on the signage .
In this case the operator is claiming that the data is used as the starting time of a purported parking contract . Nowhere at the entrance or on any other sign does it state that the permissible parking stay begins when the mororist's VRN is recorded at an arbitrary point prior to parking ,a point at which the motorist is completely unaware.

There was consequently no lawful contract to breach and even if there was it was not breached , the stay did not exceed that permitted.

LauraSt

Thank you Salmosalaris.
Would you be able to elaborate on how point 6 needs to be changed please?

Presume the 2nd bit (BPA Code etc) should be included under point 7.

Coupon-mad

LauraSt wrote: »

Thank you Salmosalaris.
Would you be able to elaborate on how point 6 needs to be changed please?

Presume the 2nd bit (BPA Code etc) should be included under point 7.

Have a look at salmosalaris' recent posts about the Beavis case differing from this sort of case. Click on his username to see his recent posts this week.

And look at this POPLA win just in, proving the importance of citing grace periods (there are TWO in the BPA CoP, quote them in your POPLA appeal as a stand alone appeal point, as this is about 12 minutes which IS within the two 'reasonable' grace periods at the start and the end):

https://forums.moneysavingexpert.com/discussion/comment/70241794#Comment_70241794

It also shows you what to say about ANPR not saying how the data captured by the cameras will be used. Another POPLA-winning point to nail down.

HTH

LauraSt

So, I should drop point 6 altogether and the whole GPEOL section?

LauraSt

[FONT=&quot]Updated draft.
Should I mention Sainsburys by comparison or leave it out?
And do I include the photographs I've taken?



Dear POPLA[/FONT][FONT=&quot]

Various details: Code etc.


As the registered keeper I am submitting this appeal.
Parking Eye do not have the identity of the driver, as was stated in the NTK.

Alleged overstay of 12 minutes

[/FONT][FONT=&quot]I wish my appeal to be considered on the following grounds [/FONT][FONT=&quot]

[/FONT][FONT=&quot]1. [/FONT][FONT=&quot]Keeper Liability Requirements and POFA[/FONT][FONT=&quot]
[/FONT][FONT=&quot]2. [/FONT][FONT=&quot]No landowner contract or legal standing to form contracts.[/FONT][FONT=&quot]
[/FONT][FONT=&quot]3. [/FONT][FONT=&quot]Grace periods[/FONT][FONT=&quot]
[/FONT][FONT=&quot]4. [/FONT][FONT=&quot]The signage was not compliant with the BPA Code of Practice [/FONT][FONT=&quot]
[/FONT][FONT=&quot]5. [/FONT][FONT=&quot]No valid contract formed between ParkingEye and the driver[/FONT][FONT=&quot]
[/FONT][FONT=&quot]6. [/FONT][FONT=&quot]ANPR[/FONT][FONT=&quot]



1. Keeper Liability Requirements and the Protection of Freedom Act

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 paragraph 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 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.

[/FONT][FONT=&quot]The Notice has no 'date sent by post' nor a 'date given' which immediately renders it non-compliant with Schedule 4. It has what the operator describes as a 'date issued' which is neither of the two dates the Act requires. It might just about scrape through if the 'date issued' was in fact synonymous with the date of posting but it is not. The Notice did not arrive for 6 days after this purported 'date issued' because it is known that ParkingEye use iMail which only actually posts letters several days after the documents are prepared. The Notice must have been posted some three working days after their 'date issued' so the Notice does not comply with the statute as it omits either a 'date sent' or 'date given'.

The subsequent reminder was issued on a Saturday immediately preceding a public holiday, and did not arrive until after the discounted date.

The Notice also fails to explain the circumstances which caused the charge to arise, instead it suggests 'either' this happened 'or' that happened which to a keeper creates no certainty at all.

The Notice also fails to describe the parking charges which were due from the driver as at the day BEFORE the date of posting of the Notice. The meaning of 'parking charges' in this section of the Act cannot be the £70 because there was no mechanism for a driver to pay this sum, therefore it cannot be described as 'unpaid' before the PCN was posted to me, which was the first we knew of the matter.[/FONT][FONT=&quot]


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 of the parking period.

[/FONT][FONT=&quot]8. 2) The notice must: [/FONT][FONT=&quot]
[/FONT][FONT=&quot](a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates; [/FONT][FONT=&quot]


Failure to comply with statutory requirements prevents the operator from relying on the provisions of POFA to invoke Keeper Liability. As the operator has no evidence as to the identity of the driver this appeal should be upheld.


2. No landowner contract or legal standing to form contracts.

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract.

[/FONT][FONT=&quot]I do not believe the operator has the authority of the landowner to issue parking charge notices or take court action in their own name to recover them. This is a requirement of the British Parking Association Code of Practice to which the operator must adhere. I demand that the operator discloses a contemporaneous and unredacted copy of the contract between themselves and the landowner to show that they do. Failure to do so must result in this appeal being upheld.[/FONT][FONT=&quot]



3. Grace periods
The BPA Code of Practice allows for Grace periods with a minimum time of 10 minutes to leave after the parking contract has ended. Additionally a Grace period should be allowed so the driver can find a space to park.

[/FONT][FONT=&quot]The letter from ParkingEye state “time in car park : 1 hours 42 minutes”
It includes photographs which show arrival time (at a location which is unspecified) and departure time with the only identifying mark being a zebra crossing.

The signage states Parking limited to 1½ hours. There are two mandatory grace periods required by the BPA Code of Practice. A mandatory grace period of a minimum of 10 minutes is required by the BPA Code of Practice for the driver to leave the car park. Additionally a grace period is allowed for a driver to enter the car park and find a space to park. An alleged overstay of 12 minutes does not take grace periods into account.[/FONT][FONT=&quot]

“Maximum stay” does not cater for time taken to find a space, exit or allowing other drivers manoeuvre into or out of parking bays both on entry and exit as is a common courtesy.

There can be no allowance for a grace period for finding a parking space if “parking” begins on entry to site i.e. a maximum stay, when the vehicle is still in motion, unless the driver is specifically notified of the time of entry to the site, and expiry time and the grace period is added to the maximum stay time. Parking means a car is stationary in a parking bay.

By comparison the nearby Sainsburys supermarket has clear ANPR notices on entry and displays number plate and expiry time.
Photograph 1 (for comparison nearby Sainsburys car park which provides this information) [/FONT]

[FONT=&quot]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.

13.4 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.[/FONT]
[FONT=&quot]
As the operator has failed to allow for grace periods this appeal should be upheld.

[/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]4. [/FONT][FONT=&quot]The signage was not compliant with the BPA Code of Practice [/FONT][FONT=&quot]

The signage is misleading, contradictory and inconsistent.
There are 2 entrances to the car park. One entrance is from a busy dual carriageway which has a sign informing drivers of a ‘maximum stay’; the other is from a busy road but there is no sign at this entrance.
The sign at the dual carriageway entrance states “Maximum stay for customers”.
Photograph 2
It is not specified on this sign that the customers should be Aldi customers. Signage within the car park specifies Aldi customers; the driver was an Aldi customer.
Signage within the car park states maximum parking time 1 ½ hours.
Photograph 3
As there is inconsistent signage, ParkingEye therefore fails to comply with the BPA Code of Practice. Does the signage mean cars entering at one location are not charged, or does it mean they are not informed they are entering a private car park? Drivers may be disadvantaged because of the entrance they use.

[/FONT][FONT=&quot]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. [/FONT][FONT=&quot]


The signage has terms and conditions in small print that cannot be deemed readable before parking.

Signs are positioned at a height that renders them unreadable under normal circumstances.
The signage gives no hours of operation. It states neither the hours of operation nor does it specify that it is operational 24 hours per day.

[/FONT][FONT=&quot]18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. [/FONT][FONT=&quot]
…[/FONT][FONT=&quot].Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read [/FONT][FONT=&quot]
[/FONT][FONT=&quot] and understand. [/FONT][FONT=&quot]

[/FONT][FONT=&quot]The NTK letter states that the signage “states that the maximum stay is 1 hour and 30 minutes”. The appeal rejection letter states “This site is a maximum stay car park” as per the terms and conditions as detailed on the signage”. However there is contradictory information on the signage which states “Parking limited to 11/2 hours”.
There is uncertainty as to the terms of this stay – is it maximum stay from the point of entry which is some unspecified point and at some unspecified time or is it, as the signage within the car park says a maximum parking time?
Additionally Schedule 4 of the Protection of Freedom Act[/FONT][FONT=&quot] requires the operator to provide details of the parking period, therefore suggesting that applying contractual terms to drivers at the point or time of entry may be illegal. [/FONT][FONT=&quot]



5. No valid contract formed between ParkingEye and the driver
[/FONT][FONT=&quot]A driver would need to be informed of, and at the time, they had entered into a contract i.e. supposedly in this case at the time of entry to the site. Failing to provide this precise time means they entered into a contract unwittingly and without their knowledge and agreement.[/FONT][FONT=&quot]

Code of practice
18.5 Driver must have chance to read Terms & Conditions before they enter into contract with you…

If a contract begins at the point of entry to the site, the driver has not been afforded the chance to read the terms and conditions before entering into a contract, nor can they read said terms at the time of parking or leaving their vehicle if the terms appear to be already applicable because they have already entered the site, which they must do in order to be able to read the terms.

18.3 Signs must be conspicuous and legible and they have chance to read them at time of parking or leaving vehicle.

The small print on the signage says “By parking, waiting or otherwise remaining within this private car park, you agree to comply with these terms and conditions (the “Parking Contract”)”.
Parking means parking and not waiting or otherwise, whatever ‘otherwise’ might mean. A driver cannot enter into a contract where uncertainty exists. ‘Otherwise’ is clearly an uncertainty. Schedule 4 paragraph 9 of the Protection of Freedoms Act stipulates that a NTK can only be issued for a parking period, and does not include “waiting or otherwise”.

[/FONT][FONT=&quot]A charge for an alleged breach (denied) of contract cannot be served on a driver when the terms of the contract are uncertain and unclear, and when different parameters are applied to the contract. One appears to be when you drive past cameras before you park, and the other appears to be when you stop the car in a bay and move out of it afterwards.

Cameras show entry and exit times but not period parked as per POFA[/FONT][FONT=&quot]
(2) The notice must—
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

[/FONT][FONT=&quot]I note that the NTK gives the time between entry and exit given by the cameras but not the period parked as required by POFA.

Parking Eye is applying a contract in different parameters, contravening POFA and the BPA Code of Practice. The terms are unclear to drivers and therefore this is an Unfair Contract.

20.5a When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.[/FONT][FONT=&quot]


For the Registered Keeper to be liable for the Parking Charge, there must be a contract between the driver and an agent authorised by the landowner. To create a contract under English law there must exist: offer, consideration and acceptance.

The Parking Charge cannot be construed as consideration. It is a contractual penalty for failing to comply with the terms. This is evident from the wording of the signage, and is confirmed by being outside the scope of VAT. If it were an additional payment for goods and services (VATSC44000), it would be liable to standard rate VAT. As a fine or penalty (VATSC57600) VAT does not apply.

As a contract has not been established by an exchange of consideration, the contractual penalty cannot be invoked.

[/FONT][FONT=&quot]6.[/FONT][FONT=&quot] ANPR [/FONT][FONT=&quot]
Camera equipment indicates entry and exit times but does not demonstrate the parking period.
The ANPR symbol is too small to be visible under normal driving conditions. Signs are not lit. On the day in question visibility was poor due to weather conditions which is evidenced by headlights lit on photograph.[/FONT][FONT=&quot]

[/FONT][FONT=&quot]There is no surrounding contextual information to locate the position of the vehicle in the photographs in relation to the car park, apart from what appears to be a zebra crossing.
[/FONT][FONT=&quot]
The ANPR cameras are not identified upon entry to the car park. 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.

[/FONT][FONT=&quot]21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.[/FONT][FONT=&quot]

The small print on the signage does not clearly state that the ANPR cameras will be used to determine length of stay on the site. This is not transparent. The ANPR symbol on the entrance sign is so small as to be barely visible to a driver entering the site from a busy dual carriageway, and appears to presume the driver recognises the symbol and will understand what it has been placed there for. The lack of signage at the other entrance means drivers entering there are unaware that ANPR technology is in use at all. Signage therefore is inconsistent and breaches the BPA Code of Practice and therefore this appeal should be allowed. [/FONT]

[FONT=&quot]The BPA CoP requires that the use of ANPR cameras and what the data produced by them will be used for is conveyed to the motorist on the signage.
In this case the operator is claiming that the data is used as the starting time of a purported parking contract. Nowhere at the entrance or on any other sign does it state that the permissible parking stay begins when the motorist's VRN is recorded at an arbitrary point prior to parking, a point at which the motorist is completely unaware.

There was consequently no lawful contract to breach and even if there was it was not breached, the stay did not exceed that permitted.[/FONT]

[FONT=&quot]There are no signs which tell a driver how the data captured by ANPR cameras will be used, which is a breach of the ICO registration of any AOS member and a breach of the BPA Code of Practice. As such, drivers are unaware that the timing is being started before they park and after they leave the parking space which is unfair under the Consumer Rights Act 2015 and a misleading business practice under the Consumer Protection from Unfair Trading Regulations 2008.

Therefore, taking all the above into account, it is respectfully requested that this parking charge notice appeal be allowed.[/FONT]



[FONT=&quot]By comparison signage in the nearby Sainsburys car park clearly states this
(Photo).[/FONT]

LauraSt

For forum operators:
Each time I attempt to post using quick reply I get the following message.

The following errors occurred with your submission Unable to post your message. Please try again

Coupon-mad

That will be an error/clash with your browser I think. I also have to avoid 'quick reply' when using our very old family PC but it's fine on my newer laptop.

Don't submit that POPLA appeal just yet. It's getting there but we want you to win and some have lost (inexplicably) recently v PE. You weren't meant to completely remove GPEOL, instead replace it with an argument similar to those posted by myself and salmosalaris recently on other POPLA threads (very easy to find if you can't see any by clicking on our usernames and going back a few pages, instead just look for other POPLA threads & you will see what we mean).

Or search this forum for the words 'entirely different' and change the default search to 'show posts' and find one I wrote last week.

You must have something about distinguishing it from the Beavis case and the lack of rationale for the disproportionate charge.

Re the grace periods I saw this sentnece in your appeal which I would just expand thus:

An alleged overstay of 12 minutes does not take the two mandatory BPA CoP grace periods into account. It cannot be reasonable or fair under the Consumer Rights Act 2015, to believe that a driver only has UNDER two minutes all told, in which to drive in, wait/queue if necessary and look for a space on site, park, lock the car then get out and go and read the signs & decide whether to stay.

The first/arrival grace period is undefined in the CoP but without intellectual dishonesty it must, on its own, surely be reasonable to construe this should be another ten minutes at least, since the BPA believes that the far shorter/easier journey of just getting into the car and leaving, should reasonably be allowed 'at least 10 minutes'.

LauraSt

Thanks Coupon mad
I had problems getting back into the forum, which probably started with not being able to post on the thread (computer is new so not same problem)
As a result I wasn't able to access this until today - I had to submit the appeal on 3rd.
I got help from pepipoo forum.
I'll let you know the result when I hear.

Thank you for your help

rockybones

Private Eye have no official right to fine or charge you anything. They are not supported in law and merely rely on the ‘contract’ that you entered into and subsequently breached.
They commonly claim a breach of the contract will include over-staying in the car park or that you did not park within the marked bays. Thus, they will assert that their Parking Charge Notice is a logical consequence. However, this is nothing more than an invoice and you are under no obligation to pay it.
Private parking companies can only issue Parking Charge Notices and these should never be confused with Penalty Charge Notices from a Local Authority. This is the main difference. The others are equally purposely subtle, yet conversely easy to spot.
For example, they may use chequered letterhead to deceive the recipient into believing they are affiliated with the Police Force thereby ensuring they receive swift payment.
The Parking Charge Notice may say that if payment is not received your ‘account’ will be forwarded to a debt collection agency and may affect your credit rating. A genuine PCN will be enforced by bailiffs and will not affect your credit rating.
They may eventually threaten bailiff action, but in order to do this they would firstly need to have issued a civil claim against you by way of an N1 in the County Court and then they would have needed to obtain a judgment debt (CCJ) against you.
They may also claim that their ‘PCN’ is backed up with photographic evidence. This is meaningless and, as stated at the beginning of this guide, no PCN whether Penalty Charge or Parking Charge is driver dependent.
They may also demand a payment of £10 for the privilege of seeing a copy of any photographic ‘evidence’, despite the fact that anyone subject to court action is automatically granted the right to view the evidence against them, without charge, should they request it.
Private parking companies will no doubt send you several letters, each more threatening than the last, our advice is to ignore everything they send you.