ParkingEye - Parking Charge Notice - Ilford Retail Park

Kaywillsell

Based on the other POPLA appeal on the site, The Driver has drafted the below and request you to please check and let me know for any changes. Thanks a bunch in advance.

Dear POPLA Accessor,

Re: Parking Charge Reference number [xxxxxxx] Vehicle registration: [xxxxxxxx]
I am the registered keeper of the above vehicle and have received the above demand for £100 parking charge notice (PCN) from ParkingEye.
My appeal to Parking Eye was rejected and they gave me POPLA code [xxxxxxxxx].
This appeal will prove that I am not liable for the parking charge.

The Driver entered and parked in the Ilford Retail Park on 06/06/2016. The car park allows two hours free parking and a further hour of parking was purchased. Please see attached photos and copy of the parking ticket. The ANPR camera shows the exit at 20:06.
The driver confirmed the overstay was 3 minutes (20:03 to 20:06) as proven by the attached ticket copy.
And as stated in the BPA Code of Practice:
13. Grace periods

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.

In addition the driver had Blue Badge-Holder passenger. The Blue Badge-Holder passenger needs additional time to climb into the vehicle, which also added some time. Please see attached copy of Blue Badge.
As stated in the BPA Code of Practice:
16. Disabled motorists
16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.


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
Valid Permissions & Consent to erect signage & notices
C) The ANPR system is neither reliable nor accurate.
D) No genuine pre-estimate of loss
E) No landowner authority
F) The notice to keeper is not compliant with the POFA 2012 – no keeper liability

A) Insufficient information provided by signage.

The signage says for one additional hour its £1.65 which the Driver 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. The Driver attempted at least thrice and then had to borrow a replacement coin from another driver for the machine to work.
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.

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 car park 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.
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 off. (Please see attached photos of signage not pointing towards the driver on entry, tiny fonts which are difficult to read and damaged signage which is difficult to read).

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 the driver. 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 the Driver could have been entered into a contract with ParkingEye for the property of where the Driver parked because the Driver didn’t fail to comply with any of the terms & conditions, The Driver 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 fully 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) The ANPR system is neither reliable nor accurate.

ParkingEye's evidence shows no proof of departure on the alleged exit time, merely photos of a car driving out. The image is a picture of a registration plate and a set of lights. With no photo evidence of the actual vehicle at the exit, how can ParkingEye justify this photo as proof of time of departure 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.

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).

D) 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.”

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 display 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 made the payment for parking. 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.

E) 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, 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 or 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.

F) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.

At this ANPR 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. 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!

In the NTK before me I can see that the driver either not purchased the appropriate parking time or remained at the car park for longer than permitted. This does not create any certainty of terms, it leaves a keeper to wonder how the charge of £100 can differ so much from the price of parking time equalling to the sum of £1.65 clearly showing this has NOT cost ParkingEye anywhere near the £100 charge or even the £60 for the 14 day reduced charge. 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).

These are the omission from POFA 2012 in the NTK issued:
''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, as at a time which is—

(i)specified in the notice; and

(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4))”

The NTK specifically fails on all counts. It even fails to describe the specific circumstances for such a parking charge amount due.

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.

This concludes my POPLA appeal.

Yours faithfully,

Redx

firstly , CM wont be replying as the forum staff have recently banned her (shame)

http://forums.moneysavingexpert.com/showpost.php?p=71137092&postcount=21

secondly , not a gpeol wont wash , not since the Beavis case , so instead use an anti-Beavis argument showing the beavis judgment doesnt apply

thirdly , if this is a driver appeal then NTK and POFA2012 issues are irrelevant , as they are for keepers , not drivers

lastly , if the overstay was 3 minutes , you should major on clause #13 of the BPA CoP, which I dont see in the main appeal but do see before the bullet points , so needs moving and a bullet point adding