Parking Eye Membury MSA - UPDATED - Success

Not_Scammed

Hi All,

A friend of mine has managed to fall into the clutches of Parking Eye.:mad:

I've saved him from CP Plus and VCS in the past:j:j (He's a slow learner!!) but I'm running into a problem with this one as it's the first time I've been asked to assist since GPEOL was knocked on the head.

I sent the standard PPC appeal to Parking Eye and eventually replied with the expected refusal and POPLA reference.

I'm struggling to find a POPLA appeal that covers Motorway Service Areas since the Supreme Court ruling.

Any pointers would be greatly appreciated.

Cheers

Redx

just put motorway popla appeal , or welcome break popla into the forum search box, took me 2 minutes !!!

like

https://forums.moneysavingexpert.com/discussion/5445843

https://forums.moneysavingexpert.com/discussion/5392631

Not_Scammed

A friend fell into Parking Eye's sights recently at Welcome Break Membury-Lambourne car park on the M4.

He asked me to help defend him against Parking Eye as I have done for him successfully against CP Plus, VCS and Euro Car Parks on a number of previous occasions. He does seem to attract PCNs from these type of companies.

I sent the standard appeal to Parking Eye to obtain a POPLA code and then sent the appeal below to POPLA. POPLA have recently sent him an email stating that Parking Eye do not wish to contest the appeal.

Just goes to show that if you stand up to bullies they back down - what a shame this 'industry' is allowed to continue.

As an aside, I recently received a demand for £100 from CP Plus as one of my vehicles allegedly overstayed in a motorway service area in Scotland - obviously as it is in Scotland I will be ignoring it and all the carp from the debt collectors that will follow. I'm getting quite a nice pile of these now.

I must admit I quite enjoy beating the bullies that infest private carparks. I've done it for myself and a couple of friends now. I know it's a numbers game and they are probably raking in so much money that the small amount I deny them is quite insignificant but it all adds up.

Me: 11
PPCs: 0

Looking forward to the DR+/Zenith letter chain to drop through my letter box to claim victory number 12.




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Email from POPLA:

Dear Mr X
Thank you for submitting your parking charge Appeal to POPLA.
An Appeal has been opened with the reference xxxxxxxxxx.
Parking Eye Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.
Yours sincerely
POPLA Team

========================================================


Email from Parking Eye

Reference: Parking Charge Notice - xxxxxxxxxx

Dear Sir / Madam,

We refer to the Parking Charge incurred onxxxxx at xxxxxxx, at Welcome Break Membury-Lambourne (West) car park.

We can confirm that this Charge has been cancelled and there is no outstanding payment due on this account.

Kind Regards,

ParkingEye Team
=================================================

Appeal Text sent to POPLA. Parking Eye Motorway Service Area POPLA Appeal.

Re: ParkingEye PCN, reference code xxxxxxxxx
POPLA Code:xxxxxxxxx


I am the registered keeper of the vehicle related to the parking charge notice (reference above).
I contend that I am not liable for the parking charge on the grounds listed below and request that they are all considered.

1) No evidence to show that a “first in, last out” has not happened
2) No evidence to show that the APNR system is reliable.
3) Failure of the Private Parking Company to adhere to the BPA Code of Practice
4) Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
5) The signage was non-compliant with the BPA CoP
6) The ANPR system is unreliable and neither synchronised nor accurate
7) Unlawful Penalty Charge
8) Reference to ParkingEye vs Beavis.

1) No evidence to show that a “first in, last out” has not happened.
ParkingEye has provided to the adjudicator photographs to support their claim of an overstay. As registered keeper I have put it to ParkingEye in my appeal to clearly show evidence that the vehicle was parked for over two hours. They have not provided this.
I also put it to ParkingEye that the vehicle in question is a company vehicle that makes frequent, daily trips along the M4. I put it to ParkingEye to evidence that they have not photographed the vehicle entering on one visit and leaving on a second or subsequent visit. They have not provided this.
I put it to ParkingEye that there is a petrol station at the scene, and to provide evidence that the vehicle in question may have been photographed on a second or subsequent visit to the site to use this facility. It has been shown in Altrincham County Court (Case 3JD08399) that driving around a carpark does not mean that a car is parked, and as such, an attempt levy a parking charge would not be correct. I put it to ParkingEye to provide evidence that the vehicle in question was parked for the periods claimed. They have not provided this.
I put it to ParkingEye to show that the vehicle was parked in the car park for the duration of the alleged incident and not part parked in the parking space and part parked at the petrol station. They have not done this.

ParkingEye has provided NO evidence to support their claim other than two photographs showing an entry and exit.I would like to bring to the adjudicator’s attention that this is a motorway services site, frequented by high-sided HGVs. It is entirely possible that during one or more of the vehicles visits to this site on the day that the APNR system used by ParkingEye simply did not record that the vehicle had left the site as the vehicle was blocked from the camera’s view by a high-sided HGV. This is entirely possible given the locations at the exit of the ANPR cameras. As the vehicle in question travels the M4 on a daily basis I put it that it is highly likely that a multiple visit has been recorded as a single stay. I outlined the possibility of this in my appeal, yet ParkingEye has chosen not to provide to the adjudicator strict evidence that the vehicle was parked for the periods claimed. I request that you uphold my appeal.They cannot show that the vehicle was parked for the duration or that a “first in, last out” has not happened. Without evidence that the vehicle was parked for the duration there can be no case.

2) No evidence to show that the APNR system is reliable.
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator 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 the vehicle entering and exiting at specific times. It is vital that this Operator 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 form 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.
ParkingEye has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.

3) Failure of the Private Parking Company to adhere to the BPA Code of Practice
In direct contravention of Clause 22.8 of the British Parking Association’s Code of Practice, to which ParkingEye must abide, states that members of the BOA must “acknowledge or reply to the challenge within 14 days of receiving it". The initial appeal was lodged on ParkingEye’s online system on 22/07/16. ParkingEye did not respond until the 16/08/16, where they rejected the initial appeal.

4) Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
ParkingEye has not produced any evidence to show that they have any legal right to issue charges on behalf of the landowner. They have provided a witness statement but not any of the requested detail to show detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). There is also no proof that the alleged signatory on behalf of the landowner has ever seen the relevant contract or, indeed, is even an employee of the landowner. It is my contention that this witness statement should be disregarded as unreliable, not proving full BPA compliance and is not sufficient to prove that Parking Eye have the necessary legal standing at this location to bring a claim in their own name nor to form any contractual relationship between the landowner and motorists. I detailed this in Section 4 of my appeal letter, yet ParkingEye has chosen to ignore this.
I also refer to the fact that the “old” POPLA service ALWAYS found in favour of the appellant where the PPC had not proved that they had the authority of the landowner, in accordance with Section 7 of the BPA Code of Practice. Please note that this practice included disregarding any evidence not shown to an appellant, so the operator cannot add it now for Wright Hassel to consider. The Operator has not shown a full unredacted copy of the contract that allows them to act (as detailed above).

For clarity, the BPA Code clearly states that
“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”

ParkingEye has not provided the adjudicator any evidence to show that they have authority to issue charges in line with the BPA Code. The Operators evidence fails to show any of the BPA requirements then the omissions must be interpreted in the way which favours the consumer. I request that you uphold my appeal on this point.

In addition, I refer to POPLA case reference 1771073004 where the assessor ruled that a witness statement was not valid. This witness statement, based on the template provided by the POPLA Lead Adjudicator, concerned evidence which could have been produced but was not. This is exactly analogous to the current case if the operator produces a witness statement regarding contract documents between he operator and the landowner; the alleged contract is a document which the operator could produce (if it exists) but chooses not to. I request therefore that the “new” POPLA is consistent with the “old” POPLA scheme in its processes and also rules any witness statement produced by the operator invalid.




5) The signage was non-compliant with the BPA CoP
The signage is, I believe, non-compliant. The signs are badly placed, full of overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand.

Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography. 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. 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.

I contend that the signs and any core parking terms ParkingEye are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

6) The ANPR system is unreliable and neither synchronised nor accurate
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's ApprovedOperator Scheme Code of Practice. I require the Operator 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 the vehicle entering and exiting at specific times. It is vital that this Operator 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 form 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.

In addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of the 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. I contend that this ANPR "evidence" from this Operator in this car park is unreliable I put this Operator to strict proof to the contrary.

I also claim that the signs at the car park do not 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. 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.

The charge is founded entirely on two photos of the vehicle entering/leaving the car park at specific times. I put ParkingEye to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to the vehicle, not vague statements about any maintenance checks carried out at other times.

The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue: http://www.britishparking.co.uk/How-does-ANPR-work. The BPA says: ''As with all new technology, there are issues associated with its use:
Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

Since I am merely the registered keeper, I have no evidence to discount the above possibilities. ParkingEye show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing or filling up with petrol or water, nor can they show the car did not leave the site and return.

In addition, the BPA CoP contains the following in paragraph 21:
''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.''
ParkingEye fail to operate the system in a 'reasonable, consistent and transparent manner'.



7) Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OB Services v Thurlow(review, February 2011), ParkingEye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

The carpark in question is free for the first two hours and £5 for the next four hours. The £100 charge is punitive and not any representation of any loss incurred.


8) Reference to ParkingEye vs Beavis
The Operator has not attempted to relate their case to that of ParkingEye v Beavis, and to therefore justify their charge. It is their responsibility to make their case. As they have not, there is therefore nothing for me to rebut. I content it is not the assessor’s job to make the case on behalf of the operator.
The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. On Nov 4th they tweeted that the judgment was taking in account use of this particular car park & clear wording of the notices.