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ParkingEye Appeal help
Matthews82
Posts: 22 Forumite
Hi wondered if any kind soul can help me with a PCN I received from ParkingEye.
My better half received a letter from them yesterday in regards to a charge for parking 20 minutes over the 2hour free parking at a car park in Wythenshawe Manchester.
I had borrowed her car to go to an interview and was unaware that the car park monitored your car from the second it entered. The time that I entered the car park was very busy. As I was early for the interview I decided to wait for a space to become available approx 10-15 mins. When I left there was a stream of traffic and it took me around 5 minutes to leave.
Both roughly accounts for the 20 min overstay.
I read through the newbie posts and sent a VERY basic appeal asking to provide POPLA code as I expect them to reject the appeal.
I have started to draft a POPLA appeal letter based on some successful points from posts I've found on here but not entirely sure I'm on the right track. I have very little evidence of my own to support my claims that the car park was in fact, busy at the time of entering nor proof that the signage did not state 2 hours start from when you enter.
I've added below what I have I must say shamefully put together from a successful decision from this site but wondered if I need to add anything regarding Grace period or to prove that the registered keeper was the driver at the time.
Any advice would be greatly appreciated.. My heads frazzled from all the research and not sure if I'm on the right track anymore.
Thank you for your time... First-time poster and newbie to fighting the parking bullies.
Matthews82:j
Re: ParkingEye PCN, reference code:
POPLA Code:
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 the APNR system is reliable.
2) Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
3) The signage was non-compliant with the BPA CoP
4) The ANPR system is unreliable and neither synchronised nor accurate
5) Unlawful Penalty Charge
6) Reference to ParkingEye vs Beavis.
ParkingEye has provided NO evidence to support their claim other than two photographs showing an entry and exit.
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 relatively small car park and during the time the car entered was a busy period for shoppers.
The time the vehicle entered the car park was 11:33am as the car park was full the driver had to wait approximately 15 minutes for a car parking space. Due to the limited information displayed on your signs the driver was unaware that the 2 hours parking began the second the vehicle entered the car park. After attending a meeting at Etrop Court the driver had to wait approximately 5 minutes to exit the car park due to other vehicles exiting the car park at the same time.
The length of time the car was parked and subsequently left the car park was within the free 2 hour parking allowance after considering the wait for an available space.
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
1) 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.
2) 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).
3) 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 Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]
4) 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 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.
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: 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'.
5) Unlawful Penalty Charge
As 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 a maximum of two hours. The £70 charge is punitive and not any representation of any loss incurred.
6) 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
My better half received a letter from them yesterday in regards to a charge for parking 20 minutes over the 2hour free parking at a car park in Wythenshawe Manchester.
I had borrowed her car to go to an interview and was unaware that the car park monitored your car from the second it entered. The time that I entered the car park was very busy. As I was early for the interview I decided to wait for a space to become available approx 10-15 mins. When I left there was a stream of traffic and it took me around 5 minutes to leave.
Both roughly accounts for the 20 min overstay.
I read through the newbie posts and sent a VERY basic appeal asking to provide POPLA code as I expect them to reject the appeal.
I have started to draft a POPLA appeal letter based on some successful points from posts I've found on here but not entirely sure I'm on the right track. I have very little evidence of my own to support my claims that the car park was in fact, busy at the time of entering nor proof that the signage did not state 2 hours start from when you enter.
I've added below what I have I must say shamefully put together from a successful decision from this site but wondered if I need to add anything regarding Grace period or to prove that the registered keeper was the driver at the time.
Any advice would be greatly appreciated.. My heads frazzled from all the research and not sure if I'm on the right track anymore.
Thank you for your time... First-time poster and newbie to fighting the parking bullies.
Matthews82:j
Re: ParkingEye PCN, reference code:
POPLA Code:
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 the APNR system is reliable.
2) Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
3) The signage was non-compliant with the BPA CoP
4) The ANPR system is unreliable and neither synchronised nor accurate
5) Unlawful Penalty Charge
6) Reference to ParkingEye vs Beavis.
ParkingEye has provided NO evidence to support their claim other than two photographs showing an entry and exit.
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 relatively small car park and during the time the car entered was a busy period for shoppers.
The time the vehicle entered the car park was 11:33am as the car park was full the driver had to wait approximately 15 minutes for a car parking space. Due to the limited information displayed on your signs the driver was unaware that the 2 hours parking began the second the vehicle entered the car park. After attending a meeting at Etrop Court the driver had to wait approximately 5 minutes to exit the car park due to other vehicles exiting the car park at the same time.
The length of time the car was parked and subsequently left the car park was within the free 2 hour parking allowance after considering the wait for an available space.
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
1) 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.
2) 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).
3) 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 Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]
4) 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 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.
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: 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'.
5) Unlawful Penalty Charge
As 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 a maximum of two hours. The £70 charge is punitive and not any representation of any loss incurred.
6) 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
0
Comments
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Did you appeal as keeper. The reason I ask is that you don't have non POFA 2012 compliant NTK in your PoPLA appeal.
You should never give away the driver's details.
Parking doesn't begin from the time the driver entered the car park. Driving around or waiting for a space is not parking.
This should be an appeal point on its own, with bullet point numberI married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Points 1 and 4 are both for ANPR accuracy, so should be combined.
Have you ascertained from the local council whether parking lie have planning permission for their cameras, and advertising consent for their signs? Failure of the latter is a criminal offence.
Do the signs state for what the ANPR data will be used? This is a BPA CoP breach if it doesn'tI married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
A commendable first draft from a newbie who has researched and not shouted 'heeeeelp!'
So, first question (IMPORTANT) does your original PCN (NOT the reminder) have a blank space at the bottom like this example:
http://imgur.com/a/FOfr8
Or does it have an extra paragraph in the middle of that blurb, about the POFA/keeper liability after 29 days? Or is it a hire/lease car with '22 days' mentioned?
PLEASE CONFIRM WHICH, AND THE DATE OF EVENT AND 'DATE ISSUED'.
Secondly, you may wish to adapt this one I just wrote which does NOT include anything about the PCN and the POFA/keeper liability because their PCN does not have the blank space and does mention the POFA (which will satisfy POPLA).
https://forums.moneysavingexpert.com/discussion/5534225
Show us your next draft please, taking the above into account, and tell us if your PCN is a 'blank space' (non-POFA) one.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
@Fruitcake - Thanks for your response. I did appeal as keeper and have not given any details away regarding the driver and do not intend to after reading through the helpful information in this site.
In re of contacting the manchester council I did not think about contacting them and to be honest I am not even sure which department I would begin with. Also since the incident I have not been back to the car park in question as I live around an hour or so away. I cant for the life if me remember any of the details on the sign regarding the APNR.
Thanks again for tip for merging points 1 and 4 together I will make that ammendment now. 0 -
@Coupon-mad
My PCN has the extra blurb about the POFA/keeper liability after 29 days.... It also has this paragraph which may be a new addition from ParkingEye...
"This warning is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of the Act... "
Date of event: 11/10/2016
Date issued: 15/10/2016
I'll get cracking on my second draft and post it soon as I get chance..
Thanks again for all your help.0 -
Heyyyy,
So I've finally received a letter from Parking Eye, Which states that my appeal has not been successful and they have given me a POPLA reference.
They stated that my request was unsuccessful on the basis that I exceeded the maximum stay on the car park and as a gesture of goodwill they kindly extended my grace period for a further 14 days (Whoop Whoop, but is something which I don't want to take them up on).
Im unsure as of what I should be doing now, so any help would be appreciated.
I will post the second draft today and hope that i have everything covered in it.
Thanks0 -
You now go back to the NEWBIES thread and read the section about POPLA.
0 -
Here's my second draft. I had a look at the appeal you suggested Cupon-Mad and am not sure which parts to pull out as the car park i stayed was not a pay and display just a max 2hr one. If there is anything i have missed could you kindly point me in the right direction please.
Re: ParkingEye PCN, reference code
POPLA Code:
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) Driving around a carpark does not mean the car is parked.
2) No evidence to show that the APNR system is reliable nor accurate.
3) Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
4) The signage was non-compliant with the BPA CoP
5) The signs fail to warn drivers of what the ANPR data will be used for, breaching the BPA CoP and the CRA and the CPUTRs.
6) Unlawful Penalty Charge
7) Reference to ParkingEye vs Beavis.
ParkingEye has provided NO evidence to support their claim other than two photographs showing an entry and exit.
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 relatively small car park and during the time the car entered was a busy period for shoppers.
The time the vehicle entered the car park was 11:33am as the car park was full the driver had to wait approximately 15 minutes for a car parking space. Due to the limited information displayed on your signs the driver was unaware that the 2 hours parking began the second the vehicle entered the car park. After attending a meeting at Etrop Court the driver had to wait approximately 5 minutes to exit the car park due to other vehicles exiting the car park at the same time.
The length of time the car was parked and subsequently left the car park was within the free 2 hour parking allowance after considering the wait for an available space.
1) Driving around a car park does not mean the car is parked
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.
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.
• 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 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.
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: 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'.
3) 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).
4) 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 Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]
5) The signs fail to warn drivers of what the ANPR data will be used for, breaching the BPA CoP and the CRA and the CPUTRs.
Paragraph 21.1 of the British Parking Association Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.
These signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.
Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside/at the boundary of the car park. It is not at all clear that the cameras are not for security but are there in order to calculate 'total stay' for the purpose of generating parking charges for profit of the operator.
In fact, any reasonable driver would believe that they are authorised to park and rely upon the time on the printed receipt for paying & displaying and that the contract begins when the coins go into the machine and consideration flows between the parties. The time before that is not parking time but a mere 'invitation to treat'; a period that only starts to be deemed a contract after the signs have been read and the driver decides to stay.
This is the normal, accepted meaning of a 'parking restriction', which would never include the time outside on the road, nor when driving slowly round pedestrians with surfboards nor the time at the end, queuing to exit.
In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: 'Requirement for Transparency:
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible'.
and Paragraph 69: 'Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.'
I contend that the words 'total stay' conflict with the words 'parking tariffs' and the most favourable interpretation of that conflict and ambiguity, as drafted on the signs, is that the driver is paying a tariff to PARK. The driver could never guess that they are paying a tariff that is somehow back-timed to include a secret timing when the clock started (unbeknown to drivers) from their arrival in moving traffic from the road. Are drivers here meant to be psychic and look at their watch as they drive off the road? If they are then this must be transparently stated at that point, at the entrance.
Withholding material information from a consumer regarding the 'time when the clock starts ticking' and the commercial (not security) purpose of the ANPR cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':
Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a) the commercial practice omits material information,
(b) the commercial practice hides material information,
(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,
and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''
6) Unlawful Penalty Charge
As 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 a maximum of two hours. The £70 charge is punitive and not any representation of any loss incurred.
7) 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
I believe that this charge is unrecoverable from myself as keeper, due to all or any of the above appeal points.
Thank you for your time.0 -
DoaM cheers for you help but i've already been there and done that. I know how to send them the appeal just would like some pointers on how to successfuly beat these guys.0
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Also do i need to add something about the registered keeper not being the driver? The PCN was addressed in my partner's name. However, she was not the driver at the time and im appealing on her behalf?0
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