Parking Eye PCN - ticket not issued

chrisotherwise

Hi,

I have just returned from a three week holiday to find a PCN from Parking Eye for a car park in Abersoch that we used while we were away.

We did try to buy a ticket, but our money got stuck in the machine and we were not able to make it either print a ticket or give us the money back. We were unable to phone their helpline number as our mobile signal is poor there and we couldn't get through. As we had paid, we left the car in the car park while we went for a walk nearby.

We were the only car in the car park so could not ask anybody else if they'd had a problem.

There was no notice put on the car and the PCN doesn't identify the driver (I'm the keeper). I can't actually remember if my wife or I were driving on that day. As the incident was at the start of our holiday (25/6) the 14 day grace period has already expired and we're not far off the 28 day period.

Is this case worth an appeal? I've read through a lot of cases on here and most seem to be about "I left after my time expired" rather than "I couldn't get a ticket".

Any advice would be appreciated.

fisherjim

What happened on the day is largely irrelevent, and the 14 day discount is just a con to get you to fold and pay up without a fuss.

Follow the newbies thread with the usual appeal points unaltered without naming the driver (how did you expect them to know who the driver was?), you will have been done by their anpr grabbs all very efficiently and cheaply system!

Coupon-mad

Yes it is worth appealing. This one is about Abersoch, with links to the GREEN signs as shown on the Parking Prankster's Blog:

https://forums.moneysavingexpert.com/discussion/5493183

If the machine was broken/blocked by coins, add that to the appeal but NOT SAYING 'I tried to pay' or 'I couldn't get a ticket'. You can say 'we' and you can say 'the driver' in the third person.

What was the date of event and the PCN 'issued date? The linked case has a PCN sent too late to arrive by day 15 (FORGET the fact you were abroad, please give us the two dates).

chrisotherwise

Coupon-mad wrote: »

Yes it is worth appealing. This one is about Abersoch, with links to the GREEN signs as shown on the Parking Prankster's Blog:

https://forums.moneysavingexpert.com/discussion/5493183

Thanks. I will appeal. However it's notable that on the page with the sign photos, a commenter says that he was taken to court and lost.

"Well I went to court today and the judge basically said that they sympathized with me it shouldn't have gone past the appeal process but now that it has gone to court they will have to rule in accordance with the the supreme high courts rulings which mean that "entry in to the car park, for what ever reason, is deemed as entering into the contract for parking" therefore as I stayed in the carpark for 20 minutes without a valid ticket I was in breach of the terms and conditions, in regards to the signage the requirement is for contrasting colours between the lettering on the sign and the background of the sign so if you got out and read the sign there would be no difficulty."

If the machine was broken/blocked by coins, add that to the appeal but NOT SAYING 'I tried to pay' or 'I couldn't get a ticket'. You can say 'we' and you can say 'the driver' in the third person.

ok, thanks.

What was the date of event and the PCN 'issued date? The linked case has a PCN sent too late to arrive by day 15 (FORGET the fact you were abroad, please give us the two dates).

Event date: 25/6/16
Date notice issued: 30/6/16

... so it would seem that they issued it in good time.

If it does end up in court and I lose, how much extra am I likely to have to pay over the £100 penalty?

Coupon-mad

If it does end up in court and I lose, how much extra am I likely to have to pay over the £100 penalty?

About £75 on top if you lost and no CCJ, no effect on credit rating. No huge solicitors fees. Bear in mind all Judges are different, small claims is a lottery and cases are still being won after the Beavis Supreme Court case, where the facts differ (as these facts do).

I must be honest that POPLA cases are not as dead easy to win as they were a year ago but IMHO I would appeal it to the death rather than shell out £60 without a whimper, to this nasty bully-boy fat cat firm.

chrisotherwise

Coupon-mad wrote: »

About £75 on top if you lost and no CCJ, no effect on credit rating. No huge solicitors fees. Bear in mind all Judges are different, small claims is a lottery and cases are still being won after the Beavis Supreme Court case, where the facts differ (as these facts do).

I must be honest that POPLA cases are not as dead easy to win as they were a year ago but IMHO I would appeal it to the death rather than shell out £60 without a whimper, to this nasty bully-boy fat cat firm.

I'm up for £75. Particularly if all the admin costs them money. Many thanks for your help, I'll get my appeal together.

chrisotherwise

I am delighted to say that my appeal with POPLA has been successful. Parking Eye failed to submit any evidence in their favour so my appeal was allowed. Huge thanks to all on here for all of the threads, info and FAQs that gave me the confidence to appeal rather than paying up.

Here is my appeal (mainly cribbed shamelessly from others in this forum):

Parking Eye - Abersoch Beach Car Park - 25/6/2016

1. ParkingEye Ltd has no contractual authority

In the notices they have sent me ParkingEye Ltd have not shown any evidence that they have any proprietary interest in the car park/land in question. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I require ParkingEye Ltd to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that ParkingEye Ltd are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

2. 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 paragraphs 8 and 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 actually 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. I would also like to point out that 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. Parking Eye should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do

3. ANPR Accuracy and Compliance

I require ParkingEye Ltd to 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 ParkingEye Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as 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 Ltd in this case to show evidence to rebut this point: 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 this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
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.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

4. No Contract was entered into between the Parking Eye and the Driver or Registered keeper

Although I was not the driver I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Parking Eye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed.
It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.


5. The car park had unclear, non-obvious, non-bpa-compliant signage leading to the driver not being aware that a parking contract was being offered at the time (evening).

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount that Parking Eye is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The alleged breach occurred during heavy rain on a cloudy, overcast evening and the signs were not visible (readable) or illuminated to be seen by any driver entering the car park at that time of the day; the car park itself was not illuminated as the public lighting was off. These are not mitigating circumstances but failure by Parking Eye plus to ensure that their signs were to be seen accordingly. The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. The signs must be visible at all times of the day; these requirements were not met and I demand strict proof that those signs are visible at the time of darkness.

The BPA Code of Practice, Appendix B, under Contrast and illumination:

Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective. Clearly none of these conditions were met (see attached photographs of non-bpa-compliant, non-obvious signage).

Furthermore, the landmark case of ParkingEye v Beavis [2015] UKSC 67 establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges. Parking Eye did not provide me with evidence that such signs, if present, were available throughout the car park and visible (lit), from the area where the car was parked at the time of the event.

Here is the POPLA response:

Assessor summary of operator case:

The operator has failed to provide any evidence in relation to this appeal.

Assessor summary of your case
The appellant states the signage on the site in question does not comply with The British Parking Association Code of Practice as it did not make the driver aware a parking contract was being offered at late evening. The appellant states due to the time of day the driver was unable to read the terms and conditions on the signage. The appellant states the operator do not have landowner authority. The appellants states the operator has not complied with the Protection of Freedoms Act 2012. The appellant has questioned Automatic Number Plate Recognition accuracy and compliance.

Assessor supporting rational for decision:

The operator has issued a Parking Charge Notice (PCN). The appellant states the signage on the site in question does not comply with The British Parking Association Code of Practice as it did not make the driver aware a parking contract was being offered at late evening. The appellant states due to the time of day the driver was unable to read the terms and conditions on the signage. The appellant states the operator do not have landowner authority. The appellants states the operator has not complied with the Protection of Freedoms Act 2012. The appellant has questioned Automatic Number Plate Recognition accuracy and compliance. By issuing the appellant with a PCN, the operator has implied that the appellant has not complied with the terms and conditions of the car park in question. In terms of POPLA appeals, the burden of proof belongs with the operator to demonstrate that it has issued the PCN correctly. As the operator has not provided a response to the appeal it has not demonstrated that the PCN is valid. Accordingly I must allow the appeal.