Suitable initial appeal to parking eye?

gerbilpasty

Hi guys,

I recently got a £70 (reduced to £40 if paid in 14 days) fine from parking eye for parking in an Aldi car park whilst Aldi it was closed. The fine was given for overstaying by 21 minutes (though obviously I wasn't actually a customer either). I was thinking of appealing with the following text (this was blagged off someone else on the forum who got a ticket for the same reason).

---

Name:

PCN Reference No:

Vehicle Registration No:

As the registered keeper of the vehicle above, I'm writing to appeal the parking charge notice issued to me on the grounds stated below -

1. Signage -The signage at the entrance of the car park where the PCN was issued isn't lit, thus making it difficult for drivers to see the signage upon entering the car park and read the signs whilst entering at night.

2. Genuine pre-estimate of loss - The parking charge amount of £XX.XX doesn't represent a genuine loss to ParkingEye LTD. as the sole purpose of the car park is to provide 'free' parking to the retail park, and as there was no stores open at this time there can be no loss.

I look forward to receiving your acknowledgement within 14 days and as there are no ‘exceptional circumstances’ your comprehensive reply within 35 days (in accordance with the BPA AOS Code of Practice B.22.8). I will then be able to make an informed decision as to how I deal with your Parking Charge Notice – Notice to Keeper.

If you reject this challenge or fail to address the issues that have been raised then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer the matter for their decision.

If you fail to follow any of the procedures outlined in the BPA AOS Code of Practice or your legal requirements under the Protection of Freedoms Act, or the requirements of the Practice Direction on Pre-Action Conduct then I will make a formal complaint to the DVLA Data Sharing Policy Group, D16

Kind Regards,

---

Am I right in thinking this appeal is almost guaranteed to fail and my real battle will be with POPLA? Just read a load of pages of the POPLA appeals thread which is reassuring because I really can't afford to lose £70 right now :j

Apologies if this post is mostly info I could pick up from the FAQ's - Just want to be sure before appealing.

Thanks

Coupon-mad

Nope, too old and out of date. Given away by these words which have no hope whatsoever since the Beavis case:

Genuine pre-estimate of loss

So, just use the template in the NEWBIES FAQs thread, near the top of this forum, and call yourself the registered keeper in the Drop-down menu. The template appeal sometimes works first time but at least doesn't mention GPEOL, and will get a POPLA code.

You should be able to win an Aldi case at POPLA. Their signs are woeful, with 80% of them not even stating the £70, so it is possible to drive in and park without ever seeing that sum of the 'parking charge' in what seems to be a free customer car park. You can't agree to pay £70 - or even know about it - if it's not there on all/most signs.

Easier if the PCN is a 'blank space at the bottom' one which does not mention '29 days...keeper liability'. Compare it CAREFULLY to this:

https://forums.moneysavingexpert.com/discussion/comment/71526676#Comment_71526676

HTH

Umkomaas

GPEOL is dead and buried. The first anniversary of its death is this Friday 4th November.

The newbies FAQ sticky provides you with a ready made initial appeal for copying and pasting. It won't get the charge cancelled at this stage (nothing short of a nuclear bomb will), but will elicit a verification code to use in a POPLA appeal where you have a better than even chance of a cancellation - provided you follow advice in the newbies sticky and showing your POPLA appeal here for critique before final submission.

gerbilpasty

Thanks for the replies guys, I just submitted the template from the FAQs.

I did actually read about the Beavis case but didn't think it would be damaging to my defence to add GPEOL in anyway so cheers for the advice. My PCN has the "29 days..." paragraph so I'm not holding my breath.

Coupon-mad

OK but at POPLA you can win on other issues v PE or merely by presenting such a long appeal that PE lose the will to live and concede. Happens quite a lot, that's why the POPLA template appeal wording in post #3 of the NEWBIES thread is so long, very deliberately.

DO NOT mention GPEOL at POPLA stage because it will wreck your chances in one fell swoop.

gerbilpasty

Hi, I got my POPLA code and this is the appeal I am planning on sending. Other than the generic points (landowner authority, driver liability and ANPR accuracy) my main argument is that none of the signs were illuminated and the car park didn’t have its own lighting and as such the signs are hard to notice/ read. I went back to my parking space and of the 3 nearest signs, 2 were facing away and one was the other side of the car park.

That said they are very similar to the signs in the Beavis case with a clear £70 shown in contrasting colours. Do you think I have a case for inadequate signage or would it have been my responsibility to realise that the grey back of one of the signs contained the contractual information?

Stupidly I’ve put this off for a while and the appeal needs to be lodged by Friday. I assume if I miss that I automatically lose the appeal? If i send an appeal and lose it is there any chance of me having to go to court if I don’t pay the £70 when I start getting hounded?

Thanks

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1. ParkingEye Ltd has no contractual authority

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


2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court.

I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK. Only full compliance with Schedule 4 of the POFA (or evidence that a keeper was the driver) can cause a keeper appellant to be deemed by POPLA to be the liable party. The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

3. ANPR Accuracy and Compliance

I require ParkingEye Ltd to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that ParkingEye Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require ParkingEye Ltd in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.

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

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


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

I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. I have recently been back to inspect the car park in question and can confirm the signage displayed at the entrance to the car park is insufficiently visible for a number of reasons: firstly that it is placed on the left hand side of the road, meaning it is in the upper left hand side of the driver’s vision. It is also erected immediately inside the car park. The car park is entered by a left turn off a busy road. The driver informs me that whilst entering the car park they were looking at the road ahead for potential hazards (a lot of pedestrians cross the road at this point) and not towards the sky out of the passenger side window. Furthermore the signage in question has no direct or indirect lighting from the car park (see attached photo) and, given the time of the night the alleged breach of contract took place, was not visible.

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

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

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


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

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

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

The alleged breach occurred at night time and the signs were not visible (readable) or illuminated to be seen by any driver entering the car park at that time of night; the car park itself was not illuminated and there was no lighting specifically for the signage. These are not mitigating circumstances but failure by ParkingEye to ensure that their signs were to be seen accordingly. The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. The signs must be visible at all times of the day; these requirements were not met and I demand strict proof that those signs are visible during hours of darkness. I have visited the space in which the driver was parked and can confirm there were no visible signs. (see attached photos of the three nearest signs)

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

Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.

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

6. No evidence of Landowner Authority

As ParkingEye Ltd does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what ParkingEye is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

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



Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours faithfully

salmosalaris

let's see the sign , it's everything as it's the basis of the alleged contract .
If it contained "customer only" wording and the store was shut there was no offer of parking and hence no valid contract was entered into by the driver on which they can sue . The sign was forbidding and the driver cannot be offered something that is also forbidden .
The driver was at worst a trespasser .

Coupon-mad

Stupidly I’ve put this off for a while and the appeal needs to be lodged by Friday. I assume if I miss that I automatically lose the appeal?

No and please don't aim for Friday, these codes work for a little past 30 days in fact and certainly over the entire weekend. Been there, done that late! It is fine. Take your time!

Remove point #1 because it is bettered by your final point which is the same but more detailed.

As I asked before:

Easier if the PCN is a 'blank space at the bottom' one which does not mention '29 days...keeper liability'. Compare it CAREFULLY to this:

https://forums.moneysavingexpert.com/discussion/comment/71526676#Comment_71526676

So is the PCN a 'blank space' at the bottom one or one that talks about 29 days for keeper liability under the POFA 2012?

HTH

gerbilpasty

Hi salmosalaris here is the sign (link below). I don't suppose you know of a relevant parking law I could include in my POPLA appeal so I can mention the fact that ALDI was closed without mentioning GPEOL?

imgur.com/a/bugRf

Hi coupon-mad, my parking fine does not have a blank section and dose have the 29 days...keeper liability paragraph. Does this render the second point in my appeal useless?

Coupon-mad

Funnily enough I tend to advise people leave that point #2 in, mainly because most PPCs throw in the towel to a detailed and very long POPLA appeal, and it does no harm. Strictly speaking it suits a 'no keeper liability' argument best but why not leave it there seeing as POPLA Assessors aren't the sharpest (nothing personal POPLA, just stating the truth from woeful decisions from people who seemingly just can't tell that 'within 29 days' does not meet the statute).

I stand by the tried & tested 'throw the kitchen sink at them' POPLA appeal style that has won for several years now. the wording has been altered lots of times to keep up with what will win but the length & detail of POPLA appeals has always been an important factor of winning 99% of the time here.

I don't suppose you know of a relevant parking law

There isn't one, as such. And you do not have to be an Aldi customer in most car parks, not that this will help at POPLA stage. The awful signs (particularly if it was dark) will be useful to illustrate your appeal though. At Aldi, almost all signs there typically have NOTHING about the £70 (PE seem to cut corners with Aldi signs) so prove that with photos and you will have some good evidence. Can you get pics of all those with NO £70 on them?

gerbilpasty

Can you get pics of all those with NO £70 on them?

I can but to be honest most of them did have the £70 on them and presumably PE could prove this with a site map? I've taken photos to show that the lighting was inadequate and that there weren't enough signs to ensure they one was easily visible from the space I was parked in though