Help with Parking Eye Popla Appeal

nikkietoni

Still quite new on here with a Parking Eye Appeal at Popla. Abersoch Beach Car Park , did not pay enough and got a pcn. Drafted an appeal and needs lots of tweeking but just wondered if I am on the right road? , any help appreciated.



I am appealing against the parking charge. I believe that I am not liable for the parking charge on the following grounds and would ask that all these points be considered.

1. Keeper Liability Requirements and the Protection of Freedom Act.
2. Parking Eye have no Standing or Authority to pursue charges nor form parking contracts
3. Confusing Unclear ambiguous inadequate signage so no valid contract formed.
4. The amount demanded is punitive not a Genuine Pre-estimate of loss
5. The ANPR system is unreliable and neither synchronised not accurate

1)Failed to invoke keeper liability as the notice to keeper omits wording required by Paragraph 9 of Schedule 4 of POFA 2012. They have not included on the notice to keeper about how much has been paid and how much remains unpaid.
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 the drivers) and the other facts that made them payable.
d)specify the total amount of the 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)
I refer to the Parking Charge Notice issued to me by Parking Eye as a Notice to keeper. I confirm that I am its keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 and I formally challenge the validity of this Parking Charge Notice. The strict requirements of Schedule 4 of POFA have to be followed in order for a parking operator to be able to invoke keeper liability for a Parking Charge

Conditions that must be met for purposes of paragraph 4
(c)inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is— (i)specified in the notice; and (ii)no later than the time specified under paragraph (f); (d)inform the driver of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available; (e)identify the creditor and specify how and to whom payment may be made; (f)specify the time when the notice is given and the date. (3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices each specifying different parts of a single period of parking). (4)The notice must be given— (a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and (b)while the vehicle is stationary, by affixing it to the vehicle or by handing it to a person appearing to be in charge

unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and (ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid; (g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available; (h)identify the creditor and specify how and to whom payment or notification to the creditor may be made; (i)specify the date on which the notice is sent (if it is sent by post) or given (in any other case).
.


2)
Parking Eye have no Standing or Authority to form parking contracts or enforce them in court in their own name
Parking Eye have no authority to issue parking contracts nor to pursue to court as required in the BPA code of practice. The Parking Eye Contract should be with the Landowner and not a company leasing the land . 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.

7) Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs
e) the definition of the services provided by each party to the agreement
As Parking Eye have no proprietary interest in the land, do not own the Car Park
and are not the landowners they have no standing to make contracts in their own right or to pursue charges for breach in their own name. A commercial site agent for the true landholder has no automatic standing or authority in their own right which would meet the requirement of Section 7 of the BPA Code of Practice. Parking Eye should therefore provide to POPLA and myself a contemporaneous and unredacted and dated and signed actual copy of their contract with the landowner which would then demonstrate that Parking Eye have the authority of the landowner to both issue parking charges and legislate in their own name or on behalf of the landowner who can then support their claim. A witness statement from someone leasing the land, or another agent, or retailer, or other land-holder would be insufficient and unclear whether the landowner has authorised the necessary rights to Parking Eye, as this would not hold all the information required and so there would be no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract or is even an employee of the landowner. If a witness statement is submitted it should be accompanied by a letter on the landowner’s headed paper and signed by a director or equivalent of the landowner confirming that the signatory is authorised to act on behalf of the landowner. The contract should state that Parking Eye 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 therefore dispute Parking Eye have the authority to enter into contracts regarding the land or to pursue charges allegedly arising. Any loss is to the landowner and only they can bring action.


3)
The Car Park had Confusing Unclear ambiguous inadequate signage and insufficient information so is not compliant with the BPA Standards and creating unreasonable and unfair terms so no contract is formed with Parking Eye and therefore no agreement to pay £100.

I believe the signs that Parking Eye are relying on at Abersoch Golf Club-Beach were confusing and misleading, also the small print is too small for anyone to see read or understand . The signs did not properly and clearly warn and inform the terms of this car park correctly and as such failed to comply with the British Parking Association Code of Practice Part 18 appendix B.
Also the signs are camouflaged by the greenery at the Parking Site and not the normal Parking Eye signage which is black writing on yellow or white. , therefore the signage is not easily seen., and as such is against the BPA Code of Practice requiring signage to be ample and visible. The colour and design of the signs does not meet either of those requirements. The signage is quite invisible due to the greenery and I am sending evidence to show this. The signs are also so high that terms would only be legible if a driver got out of the car and climbed a stepladder to try to read them. In any photos supplied by parking eye in evidence I require them to state the height of each sign .
Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead.

18)
18.1 )A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.
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.
The signage states a table of tariffs. The entrance road from which the car park is accessed is 15mph approach speed in accordance with the BPA Code of Practice Appendix B the lack of clear indication of charges being applicable to a person driving past the sign is insufficient to form any contract. Also there are no notification on the entrance sign that says there is any “free period of parking” during which there is time allowed to park read the terms and conditions and decide whether to enter into any contract or not, which is a requirement under contract law. The other signs are on high poles away from the pay machine . that there is paid parking for up to 24 hours. It says that parking can be up to one hour at £1 charge then up to three hours parking at £3.20 charge then up to 8 hours parking at £5.00 charge then up to 12 hours parking at £8 charge then up to 24 hours parking at £12, but nowhere do the signs indicate that the extra time could be purchased at any time so therefore a person could surmise that the purchase has to take place on arrival not when someone returns to their vehicle after the parking hours purchased has been reached .
Also the ticket issued only does not detail the expiry time or that extra time can be purchased on return to the vehicle.
Therefore the signage is unclear and inadequate as it does not explain about the purchase of further time and when this is allowed. For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not. I also believe that a person can pay on entry , when you get back, or top up if there is an overstay but this is not listed anywhere. Also charges do not apply for less than 15 minutes which is also not listed anywhere!


4.)
The amount demanded is not a Genuine Pre-estimate of loss The amount charged is a disguised penalty and not commercially justified

This was no agreed contract and the sum is unfair, unreasonable and unrecoverable. The charge from Parking Eye as a third party business agent is an unfair unenforceable penalty and differs from the 'Beavis v Parking Eye' judgement as this is a paid car park. The exit photo is not evidence of 'parking time' at all. This charge is for an alleged breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified, that Parking Eye who are the non-land-owning third party can claim a sum in excess of any damages.
Unlike in Beavis, it is argued that this charge has been artificially inflated and Parking Eye have failed to disengage the 'penalty rule' by virtue of a want of good faith and also a failure in their duty to deal fairly with consumers and a failure to follow the requirements of their industry’s Code of Practice. £100 is hugely disproportionate to any alleged unpaid tariff . Parking Eye cannot justify how an alleged over-stay in a paid 24-hour car park incurred a loss of £100. They have failed to supply sufficient evidence to justify this cost because of the plain fact that it is unjustifiable; it is an arbitrary figure that they have invented. And there is no commercial justification as the landholder has no incentive to maintain turnover of spaces at that location as a motorist can stay longer in the car park if required and in fact can stay all day and night if they wish by paying £12. As such it is an unenforceable penalty. The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area.
For this charge to be justified, a full breakdown of the costs Parking Eye has lost as a result of the car being parked at the car park, is required and should then add up to £100. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of costs such as 'staff time spent on appeals' and other tax deductible business costs like administration, accounting & equipment. The staff hired are already paid to do their jobs so there is no “loss” for their normal activity as apparently only 1% of cases follow the POPLA route. Therefore these costs are part of the usual operational costs irrespective of any car being parked at that car park.
Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis case was based on the use of that particular car park which was free and the charge should also be disregarded as the judgment simply reaffirms that the decision was justified to ensure motorists left within 2 hours for the good of all other drivers and the facility . As previously mentioned in this situation there is no such justification. As this was a Paying car park, the Notice to Keeper has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, 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. On the Notice To Keeper it only states that the car was in the car park for a certain amount of time and that the contravention was an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. 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 Notice to Keeper the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.
These are the omissions: '
'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...'
This NTK was not compliant due to the omissions of statutory wording
Therefore as such it is an unenforceable penalty.
Therefore Parking Eye have not told me what was paid and what is still outstanding which is a breach of Schedule 4 of POFA 2012.So the notice to keeper is not compliant.


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

I refer to Section 20, Paragraph 5 (S20P5) of the British Parking Association Code of Practice:
“When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.”
Parking Eye is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require Parking Eye to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. .Also the signs fail to inform that actual entry where the cameras are start the period of so called “parking” and only exiting past the cameras completes that period. The total time spent parked in a bay is different. As such the contractual parking time inferred is insufficient to form a proper contract.
The ANPR system is unreliable and neither synchronised nor accurate Parking Eye’s evidence shows 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 machine clock nor even to relate to the same parking event.

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 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 with records and photos.
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.
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. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents
Time in the Car Park is not a period of Parking. The motorist must be given time to park and read the signs and find a ticket machine and have time to leave the site at the end of parking . And also search for a member of the Parking Team to enquire about anything that is confusing about the sign, for example whether further parking can be paid for on return to the vehicle.. It is confusing about when to pay this. The ticket is also confusing as when you take a ticket out of the machine it is no indication on when you entered the car park and when you should get back to your vehicle , as the only information on the ticket is the time you put your registration number into the machine. Therefore it is not indicative of the time entering the car park and cannot be used as accurate reference as does not state when the free period ends.. The signs say to take a ticket after putting in your registration but it does accept any registration put in so there is no room for error, Nowhere does it explain what to then do with the ticket. nor what to do after this? So you have the ticket with no further reminders that you only have a certain amount of parking and may purchase further hours (and if that is the case when you can purchase it) or if a person is late back may get fined £100. So therefore no reminder of charges and penalties so very misleading and confusing once again. Also the small print on the machines take ages to read and a person may even need to then go back to collect their glasses from their car as the print is so tiny. This also requires good lighting and are too high for smaller people to read. The British Parking Association Code of Practice states the motorist must be given time to read the signs and time to leave the site at end of parking .
The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers are “…parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.” (18.5)
On the basis of all the points I have raised in my POPLA appeal the parking charge notice fails to meet standards set in the British Parking Association Code of Practice .I reject the charge and would appreciate that you review all my points and allow the appeal .

No Evidence from Parking Eye to show a breach of the conditions of parking
On the website of the Golf Club it does say one can pay your stay at the beginning or at the end…why does it not say this on the signs? Also says the system will allow a short period of time before a charge is made…it does not say this either on the signage.
Evidence submitted

timbo29_2

I cannot comment on this, however please us know how you get on

Redx

ditch the not a gpeol , not applicable since beavis lost his case last year

read recent 2016 popla appeals and base yours on those , including one detailing why your appeal is not the same as Beavis

nikkietoni

I have now received an evidence pack from Parking Eye via Popla appeal. 47 pages! Sections A to section G ...

I now need to rebut what they have sent . Help please anyone?

They sent by email a case summary with rules and conditions, the parking charge notice , registered keeper details and liability trail, which were photos of the car entering and leaving. The original representation and notice of rejection and images and plans of the signage.

They also included an agreement? Or contract? Dated 2013 -over three years old.
" Parking Eye Ltd -supply agreement for Car Park Management -Basic."
It also said "this agreement is made on ........2013."No actual date.!
At the bottom of this agreement/contract it said "Initial Term-a period commencing on the Effective Date and Expiry after 36 months" there were blacked out areas .
The customer was stated as Abersoch Golf Club Beach Car Park Golf Road Abersoch.
There were four signatures of " Trustees"
The terms and conditions pages with the agreement/contract of which there were two were redacted so when I tried to enlarge to read they were unreadable really.
The photos of the signage were not dated except for one which was dated 3/11/2014 and the car park signage layout plan was dated 2012.
I am wondering if the contract / agreement is out of date?
Any help please in the rebuttal as Parking Eye seem to have covered everything. Thank you so much

Fruitcake

You can state that as the contract start date has been redacted, it is reasonable to assume it has now lapsed. You believe therefore that parking lie no longer have a contract with the golf club.

Parking lie have not provided proof that the signatories are still trustees of the golf course. (You could actually find out from the golf club yourself.) If any one is no longer a trustee it voids the whole contract.

Parking lie have not provided current signage layout and you believe these signs are no longer in existence at the 2012 locations. They have failed to provide proof that the current layout is the same so cannot be relied upon as a true statement.

Fruitcake

Add that parking lie have failed to address the points you made about non-POFA 2012 compliant NTK, therefore they cannot invoke keeper liability.

Remind them of the points you made stating that any omission means they have failed to transfer liability. Since they have failed to comply with the law, you cannot be held liable.
Unfortunately you will have to explain this to the assessor in words of one syllable as there have been some dreadful decisions recently by them.

Fruitcake

The picture of the sign is out of date and cannot be relied upon as being present at the time of the alleged incident.

If it has an 08XX 'phone number it breaches the BPA CoP.

Does the sign state what the ANPR data will be used for? That is a BPA CoP and ICO breach if not.

Doe the ANPR cameras have planning permission, and do the signs have planning consent? Not having the latter is a criminal offence and no one in this country is permitted to profit from an illegal activity. If this is the case, it won't get to court as they have recently pulled out of cases where the planning consent issue has been raised.

Edna_Basher

As Fruitcake points out, you need to make it as easy as possible for the POPLA assessor to understand the points you are making - aim to hand them on a plate the reasons why they should find in your favour.

For example, make it clear to the assessor that the key terms and conditions of ParkingEye's contract with the Golf Club are unreadable on the copy they have provided, even when magnified. Refer the assessor to similar POPLA cases including this one:

http://forums.moneysavingexpert.com/showpost.php?p=71242938&postcount=2321

nikkietoni

Thank you so much .I will do as you say guys! I will keep you posted. Xx

Elysander

The Parking Prankster has previously blogged about this car park and its signage

http://parking-prankster.blogspot.ie/2014/09/picture-of-week-abersoch-beach-car-park.html

nikkietoni

Hi thanks for the info about parking prankster blog and the car park. I had seen it and used some if the photos and info in my appeal x