POPLA Appeal WON - vs Parking Eye Limited

buffness

Good Afternoon All,

I received a PCN from Parking Eye Limited a few months ago - I decided to follow the normal appeals process and surprise surprise - Parking Eye Ltd sent a generic 'UNSUCCESSFUL' letter to me, along with information on how to appeal to POPLA.

After reading various forums and information on here, and using a template letter provided by a different website, I have received information that POPLA have deemed my appeal as 'successful' - yipee!!

I'll copy and paste the letter I sent to POPLA, along with the rationale behind their decision so that others may be able to use this against Parking Eye Ltd - please see below.

Have a great weekend everyone

Vijay

buffness

LETTER TO POPLA:



ADDRESS

DATE

Parking on Private Land Appeals
PO Box 70748
London
EC1P 1SN

Dear Sir/Madam,

Re: Parking Charge Reference number: XXXXXXXXXX
Vehicle registration: XXXXXXX

I am the registered keeper of the above vehicle and have received the above demand from Parking Eye.

My appeal to Parking Eye was rejected and they gave me POPLA code XXXXXXX For the purposes of clarity, today is the deadline for me to submit my appeal and therefore classed as being within the timeframe.

The basis of my appeal is:

1) The Charge is not a genuine pre-estimate of loss

Their sign states the charge is for ‘not fully complying with the conditions’ so Parking Eye must prove the charge to be a genuine pre-estimate of loss.
• As parking was paid for, there can be no loss to Parking Eye, and therefore no loss flowing from the parking event.
• Parking Eye cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver’s alleged breach.
• There is no loss flowing from this parking event because the car park was no-where near full.
• Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. Parking Eye would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.
• Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.
• ParkingEye cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a ‘fishing licence’ to catch motorists and some arrangements where they have pay and display, and others which are free car parks.
• The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. ParkingEye cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned ‘commercial justification’ statement they may have devised afterwards (since this would not be a pre-estimate):
• The British Parking Association Code of Practice uses the word ‘MUST’:
“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.”

2) Lack of signage – no contract with driver

The signs were not visible from a distance and the words are unreadable. I put Parking Eye to strict proof otherwise; as well as a site map they must show photos of the signs as the driver would seem them on entering the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.
The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ”Signs should be readable and understandable at all times, including during the hours of darkness…when parking enforcement activity takes place at those times. This can be achieved…by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit…should be made of a retro-reflective material similar to that used on public roads”.

3) Lack of standing/authority from landowner

Parking Eye has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Parking Eye to strict proof of the contract terms with the actual landowner (not a lessee or agent). Parking Eye have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Parking Eye are entitled to pursue these charges in their own right.
I require Parking Eye to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for Parking Eye merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

4) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
’18.1.3 Objections are less likely…if a term is specific and transparent as to what must be paid and in what circumstances.
An unlit sign of terms placed to high to read, is far from ‘transparent’.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.” Furthermore, Regulation 5(1) states that: “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”.
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: “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.

5) The ANPR system is unreliable and neither synchronised nor accurate

ParkingEye’s ANPR records show no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of ‘parking time’ as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of ‘parking time’ at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that evening.
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. If there was such a sign at all then it was not prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.
In addition I question the entire reliability of the system. I require that ParkingEye 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 and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because 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 ParkingEye to show evidence to rebut the following assertion. 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 the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary and to show how these camera timings are synchronised with the pay and display machine.

Conclusion

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused as parking was paid for, and where the bays are not full. I put Parking Eye to strict proof to justify that their charge, under the circumstances described.
I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Yours sincerely,

buffness

POPLA APPEAL RESPONSE

Decision
Successful

Assessor Name
XXXXXXXXX

Assessor summary of operator case
The operator’s case is that the appellant had remained at the site for longer than permitted.

Assessor summary of your case
The appellant’s case is that the charge is not a Genuine Pre-Estimate of Loss, the signage was insufficient, there is no landowner authority, the terms are unreasonable, the Automatic Number Plate Recognition system is unreliable and that the operator has not complied with the Protection of Freedom’s Act 2012.

Assessor supporting rational for decision
While the appellant has raised a number of grounds for appeal, my report will focus solely on the landowner authority, as this supersedes the other aspects of the appeal. “Section 7 of the British Parking Association (BPA) code of practice requires Operators to own the land or to have written authority from the landowner to operate on the land.” As the Operator has failed to provide any sufficient evidence in response to this ground of appeal, it has failed to prove that it has the required authority to operate on the land in question. As such I have no requirements to take into consideration other points made by the appellant.

Marktheshark

Have you learnt your lesson ?

Stay out and stay away from any car park they operate and count this as a very lucky escape, the same appeal does not automaticity work, POPLA are becoming like the IPC with random decisions.

Redx

yet another LANDOWNER AUTHORITY failure by PE

well done

put some info and a link to this thread in the POPLA DECISIONS sticky thread at the top if this forum please

thank you

and again , well done

buffness

Redx wrote: »

yet another LANDOWNER AUTHORITY failure by PE

well done

put some info and a link to this thread in the POPLA DECISIONS sticky thread at the top if this forum please

thank you

and again , well done

I have no idea, how to do this as not a huge user of the forums - sorry! If you want to guide me further, I'd be happy to do it

The_Deep

Also bring it to the attention of your local paper and radio station. the chamber of commerce and tourist board, and in writing to your local Trading Standards Officer, "parking eye acting without landowner authority".

Check with the local council that they have planning/advertising permissions for their signs. Cost them money.

Redx

buffness wrote: »

I have no idea, how to do this as not a huge user of the forums - sorry! If you want to guide me further, I'd be happy to do it

open 2 tabs , one with this thread in it, the other with the popla decisions thread, last page

copy and paste the above decision and PPC into the reply box of the POPLA DECISIONS thread

highlight and copy the URL of this thread from your browser and paste it into the reply box

hit submit reply

buffness

The_Deep wrote: »

Also bring it to the attention of your local paper and radio station. the chamber of commerce and tourist board, and in writing to your local Trading Standards Officer, "parking eye acting without landowner authority".

Check with the local council that they have planning/advertising permissions for their signs. Cost them money.

I've sent an email to Liverpool City Council already to make them aware of the decision - I'll do the others over the weekend.

Makes me laugh at the way they issue 'PCN' letters in the hope that people will just pay when they aren't even following the rules themselves. Absolutely pathetic. What also makes me laugh is the way I appealed to them on their website, and they sent a generic 'unsuccessful' letter without addressing any of the points I raised.

Why are companies like this allowed to operate in this way? Some people do not know how to appeal and would just end up paying the fine and think it's over and done with.

beamerguy

buffness wrote: »

I've sent an email to Liverpool City Council already to make them aware of the decision - I'll do the others over the weekend.

Makes me laugh at the way they issue 'PCN' letters in the hope that people will just pay when they aren't even following the rules themselves. Absolutely pathetic. What also makes me laugh is the way I appealed to them on their website, and they sent a generic 'unsuccessful' letter without addressing any of the points I raised.

Why are companies like this allowed to operate in this way? Some people do not know how to appeal and would just end up paying the fine and think it's over and done with.

Well done for beating the PE Vermin

WHY ? because right now this is not a regulated industry and we are waiting to hear with baited breath from government who are dragging their heels, what they are going to do about this mega scam

Maybe it's the "back hander" brigade that allow the daily scam hurting innocent people.

I guess that too many pieces of gold drop into the hands of those who could actually help and then vanishes into offshore accounts

pustit

beamerguy wrote: »

Well done for beating the PE Vermin

WHY ? because right now this is not a regulated industry and we are waiting to hear with baited breath from government who are dragging their heels, what they are going to do about this mega scam

Maybe it's the "back hander" brigade that allow the daily scam hurting innocent people.

I guess that too many pieces of gold drop into the hands of those who could actually help and then vanishes into offshore accounts

Offshore accounts. Very topical, I like that.