stung by parkingeye

Fruitcake

Paragraph C, time of department should be time of departure.

Coupon-mad

Redx wrote: »

as you gave away the drivers details and appealed as driver, I am unsure why any of the NTK and POFA2012 stuff is relevant ?

they dont need to follow POFA2012 or any NTK details when pursuing a known driver , they could pursue drivers before oct 2012 (POFA2012)

Yep all of that is in the bin - a driver can't use the POFA.

bcs2015

Dear POPLA Accessor,
I should start this appeal by explaining the situation of how I was, as the registered keeper of the vehicle xxxxxx, issued with a £100 parking charge notice (PCN) from ParkingEye. I am the registered keeper and I was driving the car on that day, this appeal will prove that I am not liable for the parking charge.

I entered and parked in the Ilford Retail Park on 26/01/2016 at 19:22:28. I was aware that it was a 2-hour free stay and any further parking after that would need to be paid for. After shopping I arrived back at the carpark by then I was few minutes above the free stay period, so I attempted to pay for the parking at the pay station. After typing in the registration for the vehicle and feeding in the coins, I could clearly see that there was a fault with the machine as it returned coins instead of printing the receipt. I attempted to pay thrice but the result was same (I have used this car park before and have paid for parking on the earlier occasions, I am aware of using the payment machine).
Then I approached LIDL store to inquire how to pay for parking as the machine was not working, I was told to look for the instructions on the signage, I also asked if there was a site management office and was told they are not aware of it. So I returned to the machine and read the signage near the machine and called the only phone number found for ParkingEye (0330 555 4444), but my calls went to an automated system and it kept on asking for PCN reference number it was not helpful as I wanted to make payment for parking. I have included a print out of page No 30 of my mobile bill showing the call records for my attempts to reach out to pay for the parking at 21:55 & 21:58 before exiting the car park, I have no reason to call this number at that time unless to pay for the parking. I had no choice but had to drive away as the car park was un-manned to ask for any help.
Two weeks later I received a PCN of £100.

Since receiving the parking charge I have done a lot of research into the charges from ParkingEye and have found countless sites stating it is a very common, misleading trap being set by this specific private parking company. As research shows, ParkingEye is even having a negative impact on the popular tourist locations around the UK due to errors of their own and tourists are being stung with a charge for so-called ‘breach of contract’. As widely and very consistently reported online by the victims of such a parking charge, I now feel strong enough to exercise my right to appeal this to POPLA.

The grounds for this appeal are as follows:

A) Insufficient information provided by signage
Frustration of Contract
C) Valid Permissions & Consent to erect signage & notices
D) The ANPR system is neither reliable nor accurate.
E) No genuine pre-estimate of loss
F) No landowner authority

A) Insufficient information provided by signage.

The signage says for 1 additional hour its £1.60 which I understood whilst attempting to pay. The sign also says, ‘‘motorists must enter their full, correct vehicle registration when using the payment machine’’ after entering the registration number and feeding in the coins, instead of printing the receipt the machine returned coins. I attempted at least thrice the result was same and thus resulting in receiving parking charge for this. There is no clear information on what to do in the event of failure of ParkingEye’s machines to take the payment so when a problem arises, information regarding this doesn’t exist, and therefore you receive a parking charge.

I require that the operator provides documented evidence of the number of times the driver inputted the registration into the machine, this will obviously be documented on ParkingEye’s system if the machine was in proper operation on the day.
The signs are not prominently shown, and the terms and conditions are in far too small a font to reasonably be read from within a vehicle whether stationary or moving or standing in front of.
The signage at the site laid out by ParkingEye does not communicate full contractual terms and conditions I believe that these signs do not meet the BPA's code of practice. I put ParkingEye to strict proof otherwise. As well as a site map, they must also show photos as evidence.

The signage was not seen clearly outside of a parking bay, so there was no valid contract formed between ParkingEye and me. It also seems as this has been purposely done so that people will ‘fail to comply with the terms & conditions’ for this reason it is not believed that I could have been entered into a contract with ParkingEye for the property of where I parked because I didn’t fail to comply with any of the terms & conditions, I was simply mislead by the inadequate information supplied by the signage.

POPLA is requested to check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. It is contended that the signs on this land, in terms of wording, position, and clarity, do not comply and fail to provide information on how to make payment when the machine is not working.

The BPA's view is 'As with all new technology, there are issues associated with its use'

Valid Permissions & Consent to erect signage & notices
Though this is a private car park, still I believe they would need to have proper planning permission and valid consent from council for erecting the signage and notices on the car park as they are classed under advertisements. I would like ParkingEye to furnish the documentary proof for the same.

C) Frustration of Contract
ParkingEye has stated in the letter declining the appeal, that a contract is formed with the driver via signage detailing the conditions under which a motorist is authorised to park. I find it hard to accept that a contract can be formed with lack of information on the signage around the carpark of how to pay for the parking. The Signage provided doesn’t provide enough information on the payment machines and this is clearly why so many people are failing to pay for the parking and being hit with such a charge.
Since parking eye's faulty equipment did not allow me to pay, no contract could be formed between the parking company and me.

D) The ANPR system is neither reliable nor accurate, doesn’t serve the purpose in all situations, it is not human to have reasoning & common sense.

ParkingEye's evidence shows no proof of departure on the alleged exit time, merely photos of a car driving out. The image is poor, it is a picture of a registration plate and a set of lights, the rest is black, and nothing else can be seen. With no photo evidence of the vehicle at the exit, how can ParkingEye justify this photo as proof of time of department when it could have been taken anywhere on the car park at any time. This is not proof of leaving the car park. The exit photo is not evidence of 'parking time' at all.
Moreover the time of departure as captured by APNR does not reflect time spent on the attempts to make payment at the machine and on inquiries at LIDL store, considering my attempt to contact Parking Eye at 21:55 makes the overstay of 33 mins. If the grace period of 15 mins and the 20 minutes spent on inquiry are deducted from overstay period then I am well within the 2-hour free stay period.

There were no signs to inform a driver how the data captured by ANPR would be used which is a breach of the ICO registration and BPA CoP and fails to tell a driver that they are being timed from the entrance, rather than 15 minutes later when the contract SHOULD start, at the P&D machine (Thornton v Shoe Lane Parking is the authority on when the contract starts in a P&D car park).


E) No genuine pre-estimate of loss

The Beavis case was considered to be a 'complex' contractual arrangement with a specifically argued 'legitimate interest'. Here, ParkingEye has shown no comparable 'legitimate interest' in enforcing their charge and nor have they shown it is anything more than a standard monetary contract, where GPEOL is still a requirement (as was reiterated in the Supreme Court hearing).

The purported contract with the motorist is undoubtedly a simple financial contract where the loss is easily calculable, unlike the complex arrangement - a valuable licence to park free of charge at first, offset with a 'quid pro quo' £85 charge -in Parking Eye v Beavis. Here there is a clear financial interaction between the operator and motorist. The £100 'charge' is clearly an attempt to impose payment of a large sum in consequence of the non-payment of a very small sum (£1.60), contrary to the Consumer Rights Act 2015 and contrary to Lord Dunedin's four tests for a penalty.

Parking Eye seem to be under the misapprehension - and desperately hoping - that POPLA Assessors will swallow the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. They also seem to cling to the hope that POPLA will believe that the UTCCRS (now within the Consumer Rights Act 2015) do not apply somehow, to any parking charge case!

With reference to The Consumer Rights Act 2015 (Schedule 2 part 1 para 6) the charge is very clearly an unenforceable contract term because the operator is seeking to impose a charge in compensation that is vastly disproportionate to an (easily calculated) allegedly 'unpaid' parking tariff. It is noted that in their evidence, ParkingEye have not mentioned the Consumer Rights Act at all, so they have not made any argument at all that can disapply it. However, whether a defendant/appellant mentions the fairness of a contract term or not, courts are obliged to ALWAYS give consideration to the fairness/unfairness of any contract or term.

As regards the Beavis case, it was made plain that in more complex contracts (in that case, a free car park with no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. However, this case can easily be distinguished from Parking Eye v Beavis and this case is not a 'complex' contractual arrangement at all.

The Beavis case is not relevant to any other car park except that precise situation and location in that unique case (as the SC Judges were at pains to Tweet as soon as the astonishing decision was made public). A thorough review of the findings from the Supreme Court and the Court of Appeal hearings shows that case has no application to a Pay and Display car park whatsoever.

There is no 'legitimate interest' in enforcing a punitive charge against a motorist who had attempted to pay to park for the time actually parked. In this case the driver had no idea that they would later be unfairly charged when they actually tried to make the payment for parking but couldn’t could to faulty machinery. This is not the same as in the Beavis case where the driver was considered to have understood and accepted all terms which were 'clear and very prominent' and where there was no tariff in play to make it a standard contract. This charge is simply being enforced in an attempt to punish the motorists for no fault of their own.

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment and the preceding Court of Appeal judgment, as regards any type of 'simple financial contract' such as this one where there is a quantified tariff. After all, both ParkingEye and the driver are citing the words from the earlier hearing as a support for the cases. This case is an unfair penalty and clearly differs from the 'Beavis v Parking Eye' judgment.

F) No landowner authority

The 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, Parking Eye 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 Parking Eye to strict proof to provide POPLA and myself with an underacted, contemporaneous copy of the contract between Parking Eye 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 Parking Eye.

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award Parking Eye Limited could seek would be damages. As there was no damage to the car park there was no loss to them or the landowner at all and therefore there should be no charge.


This concludes my POPLA appeal.
Yours faithfully,

yotmon

Just thinking out loud here, but I was wondering if it would have made any difference to the result of this case (or future cases) if the OP, having exhausted all means to make payment for the extra time parked, pre-empted Parking eye issuing a pcn by immediately sending payment to them for the additional cost of parking.

would it then be seen as vexatious if PE refused the payment and issued a PCN ?

Fruitcake

Your headings ABC don't match your paragraph headings. (B and C are transposed.)

bcs2015

Thank you, well spotted have corrected headings. result of multitasking at work.

The whole issue with ParkingEye is there is no alternative way of payment when the machine is not working. In fact I feel they should be penalised for causing inconvenience to so many people. It should be made mandatory for operators to provide alternate payment apart from the machines on site.

bcs2015

Am trying to file the POPLA appeal, on the site I see the following reasons for appeal
1) My Vehicle was Stolen
2) I was not improperly parked
3) The amount requested on parking charge notice is not correct
4) I was not the driver or registered keeper
5) Extreme circumstances
6) Other

Should I select 2, 5 & 6? I thought I could attach the appeal drafted in the last post and submit it to POPLA, but the following screens ask specific questions and documentary proof if any to prove the case. bit lost, help pls.

beamerguy

bcs2015 wrote: »

Am trying to file the POPLA appeal, on the site I see the following reasons for appeal
1) My Vehicle was Stolen
2) I was not improperly parked
3) The amount requested on parking charge notice is not correct
4) I was not the driver or registered keeper
5) Extreme circumstances
6) Other

Should I select 2, 5 & 6? I thought I could attach the appeal drafted in the last post and submit it to POPLA, but the following screens ask specific questions and documentary proof if any to prove the case. bit lost, help pls.

There should be
7) Is the operator a scammer

bod1467

Dear POPLA Accessor?

Coupon-mad

bcs2015 wrote: »

Am trying to file the POPLA appeal, on the site I see the following reasons for appeal
1) My Vehicle was Stolen
2) I was not improperly parked
3) The amount requested on parking charge notice is not correct
4) I was not the driver or registered keeper
5) Extreme circumstances
6) Other

Should I select 2, 5 & 6? I thought I could attach the appeal drafted in the last post and submit it to POPLA, but the following screens ask specific questions and documentary proof if any to prove the case. bit lost, help pls.

The NEWBIES thread (post #3 about POPLA) tells you to attach your PDF appeal under 'other' with just a one-liner in the box and not to answer the rest of the questions.