ParkingEye POPLA appeal Chelmsford Riverside

louisamay

Hi,

I have been unsuccessful in an appeal to ParkingEye for overstaying in the "Beavis" car park in Chelmsford, Essex for 16 minutes over the 2 hour stay. I used the appeals template on this website and now would like someone to help me decide whether it is worth appealing to POPLA because this was the same car park that was part of the case that wasn't successful. I have no receipts from shopping as did not purchase anything on that day. I have a draft template to POPLA which i can post here for checking if it is deemed useful to proceed? Many thanks in advance for any assistance?
Louisa

beamerguy

louisamay wrote: »

Hi,

I have been unsuccessful in an appeal to ParkingEye for overstaying in the "Beavis" car park in Chelmsford, Essex for 16 minutes over the 2 hour stay. I used the appeals template on this website and now would like someone to help me decide whether it is worth appealing to POPLA because this was the same car park that was part of the case that wasn't successful. I have no receipts from shopping as did not purchase anything on that day. I have a draft template to POPLA which i can post here for checking if it is deemed useful to proceed? Many thanks in advance for any assistance?
Louisa

Of course you appeal to POPLA, the Beavis case centered around the fairness of the charge. Parking Eye know there is a 10 minute grace period so probably the extra 6 mins was spent getting out of the car par park

What a scam Parking Eye operate. Post your appeal here for the experts to view

Redx

grace periods apply , say 6 minutes to park , read the signs and comply , over 10 minutes to leave the car park (so the above reply got it the wrong way round)

there are no templates for popla , but by all means draft one up

louisamay

Thank you. I'm trying to find a POPLA appeal letter for this car park on the forum, to make sure i have the information correct (don't live here so can't double check signage etc). Can anyone point me in the right direction so that i can make my appeal as relevant as possible before i post? Thanks

louisamay

Redx wrote: »

grace periods apply , say 6 minutes to park , read the signs and comply , over 10 minutes to leave the car park (so the above reply got it the wrong way round)

there are no templates for popla , but by all means draft one up

Ah ok, no templates...i will cobble something together based on others that have been posted. Thanks.

louisamay

Dear Sir/Madam,
Re: Parking Charge Reference number [xxxxxxx]!
Vehicle registration: [xxxxxxxx]
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 [xxxxxxxxx].

The Parking Charge Notice and rejection letter both refer to Riverside car park, Chelmsford, Essex.

The basis of my appeal is:

1) 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. It is unreasonable for this operator to record the start of ‘parking time’ as the moment of arrival in moving traffic. The exit photo is not evidence of ‘parking time’ at all. In entering the car park at the recorded time, the driver was unable to park immediately and spent around 6 minutes locating a space in the car park. In addition to this, at the end of the parking period, a further 10 minutes were spent attempting to exit the car park. This confirms that the total parking period did not in fact exceed the 2 hour limit and proves that the ANPR system is unreliable and not synchronised or an accurate reflection of the time parked.

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!ParkingEyepresent 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.


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 notice any signs; 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”.

Appendix B of the BPA Code of Practice also states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

Section 18 of the British Parking Association (BPA) Code of Practice requires operators to fully comply with the following on entrance signage:

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. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.!

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. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.!

If a driver can't read the sum of the parking charge (the £40) before parking - because the font is too small/the sign unremarkable and too high to read from a driver's seat - then they cannot have agreed to it. Also, a keeper appellant cannot be bound by inadequate notice of the charge either (POFA Schedule 4 requires 'adequate notice' of the sum of the parking charge, not just vague illegible small print, however near the car).

The well-known and oft used 'Red Hand Rule' in the binding case of J Spurling Ltd v Bradshaw [1956] applies, where Denning LJ stated: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient''. In Mendelson v Normand and Thornton v Shoe Lane which were both about parking, this was also clearly stated by Denning LJ:

‘The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue…was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.’!

i.e. even if a document or notice is ostensibly under the nose of a consumer, the onerous term (e.g. £100 charge) needs to be VERY explicit and prominent. Not hidden among small print on a sign, regardless of whether that sign is in the vicinity of the car. This was reiterated by Denning LJ in Thornton v Shoe Lane Parking [1971] where he held that the courts should not hold any man bound by such a condition unless it was ''drawn to his attention in the most explicit way''. Small print on an illegible, unremarkable and pale sign on a wall is not enough and is not on a par with the very clear signs 'with the charge in large lettering' as was explored and vital to the decision in Parking Eye v Beavis.!

Furthermore, these signs are nothing like those offering a licence to Mr Beavis (ParkingEye!Vs Beavis), allowing him to park under 'clear' terms. With reference to the following cases District Judge Glen opted to hear all three cases in a single hearing:

B4GF26K6 PCM (UK) v Mr B (£914.67 claimed)
B4GF27K3 PCM (UK) v Mr W (£1559.82)
B4GF26K2 PCM (UK) v Ms L (£1067.15)

These cases were dismissed and DJ Glen started by referring to the Beavis transcript, at paras. 94, and 189/190, which made it clear that it was agreed by all parties that there was a contract between PE and Beavis. He said that analysis didn’t apply in this case, as the notice was absolutely prohibitive, and didn’t communicate any offer of parking. The landowners may have a claim in trespass, but that wasn’t under consideration here.

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.”

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.”
I also wish to reference the Aziz test (as my case is different to that of Beavis vParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”!

And as for whether average consumers 'would have agreed' to pay £85 had there been negotiations in advance, the answer here is obviously no. There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £85 to this parking firm. Their charge relies upon unseen terms, not clear contracts, and should not be upheld.

Conclusion
I contend it is wholly unreasonable to rely on ANPR on entrance and exit of any car park as an accurate reflection of time spent parked. 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,
[the registered keeper’s signature]
[the registered keeper’s name]

Umkomaas

Furthermore, these signs are nothing like those offering a licence to Mr Beavis (ParkingEye!Vs Beavis), allowing him to park under 'clear' terms.

These were the very signs on which the Beavis judgment turned! Unless PE have dumbed down their signage at Riverside, you're on a bit of a loser on signage.

Your real prospect of success, handed to you on a plate by Redx in post #3 (Grace Periods), doesn't appear in your appeal.

Coupon-mad

I agre with Umkomaas, you are on a hiding to nothing with signage, UNLESS you use the evidence the Parking Prankster exposed:

http://parking-prankster.blogspot.co.uk/2016/01/parkingeye-deceive-supreme-court-with.html

The Prankster stated based on his findings:

''Yes, that's correct - only 15 of the 20 signs ParkingEye claim are present in the evidence are actually there. Five of the twenty signs ParkingEye claim were present are not. Fully 25% of the signs claimed were missing. In addition one sign (number 5) was in the wrong place and there was one extra sign not mentioned, which means that around 1/3 of the signage evidence submitted to the Supreme Court was either plain wrong or misleading.''

''So there you have it. 172 well signed spaces, 233 badly signed spaces, and 67 spaces which can only be classed as entrapment zones, including most of the disabled bays. Of the 472 spaces, 63% are badly signed and of those 14% are ParkingEye's cash cows.''

You need to proof read your POPLA appeal and remove stuff that makes no sense for your case - never just copy things like Umkomaas noticed.

Oh, forgot to add - Mr Beavis asked Staples to cancel the PCN in his case but he asked too late, after the court papers were served (I think). Staples wanted it cancelled. So, although you spent nothing you were browsing for future purchases weren't you - in Mothercare or Matalan or where?

Take a leaf out of this person's book and complain politely to ALL retailers asking them if they could cancel this charge:

https://forums.moneysavingexpert.com/discussion/5433044

Try it in person this weekend (without overstaying) pleading with them to help you avoid a court case. The place is so notorious now I reckon at least one Store Manager would cancel this if you ask very nicely - it is only 16 poxy minutes after all - and you (unlike Mr Beavis) are not asking too late. Was there a reason you took longer? Had kids with you/elderly or disabled passenger, were you alone but feeling ill? All such things are worth mentioning to the retailers to appeal to their better nature.

louisamay

Thanks for feedback. Admit I am struggling with what is relevant and what isn't with all the legal info. I will review properly and post an improved response. I appreciate your time to help me.

Coupon-mad

More important to complain to the retailers first. You could have this cancelled by the end of the weekend.

louisamay

Thanks for the advice. i have complained to the retailers and had no luck unfortunately. I'll get back to writing my appeal!