PCN from Parking Eye - Preston Parking PCN appeal turned down by PE

Coupon-mad

we were informed by the local Councillor (linked to Preston) that the incorrect reg invoice was one we should get overturned more easily

I say they will both be difficult at POPLA because a wrong VRN does not work as a POPLA appeal point - just saying: 'look it was a VRN error but we paid' means nothing at POPLA but would do in front of a real Judge in Small Claims!

Unless either of the PCNs are the type that do not mention the POFA and have the blank space at the bottom, having not been served within 14 days? An example of a 'blank space/non POFA ParkingEye PCN is in post #3 of the NEWBIES thread as a linked picture. That's the best type to have and wins for a keeper appellant, at POPLA. Hope you have one like that?

discontent64

Thanks Coupon-mad. The comment was made when one is faced with a real judge. It would be hoped that POPLA would realise the futility of pressing forward, but reality and hope often do not go hand-in-hand.

We are posting the first appeal letter in the posts below, linked to the supposed overstay. Hope the thread remains clear.

discontent64

Part 1 of letter:

Dear Sir/Madam,
Re: Parking Charge Reference number [xxxxxxx] Vehicle registration: [xxxxxxxx]
I am the registered keeper of the above vehicle and have received the above demand from Parking Eye.
My appeal to Parking Eye was rejected and they gave me POPLA code [xxxxxxxxx].
The basis of my appeal is:

1) Lack of standing/authority from landowner

Parking Eye has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right. In 2013 ParkingEye applied for retrospective planning permission from Preston City Council (application 06/2013/0440) identified as a “Change of use from car park ancillary to former police station to Pay and Display car park”. Within this amended application ParkingEye identified that they owned the land in question and were managing it on behalf of Imperial Management Co. Limited.

This application was made by Christopher Lee of ParkingEye, who identifies himself as the owner/applicant under the Town and Country Planning (Development Management Procedure) (England) Order 2010 Certificate under Article 12, certifying that “The applicant certifies that on the day 21 days before the date of this application nobody except myself/the applicant was the owner (owner is a person with a freehold interest or leasehold interest with at least 7 years left to run) of any part of the land to which the application relates, and that none of the land to which the application relates is, or is part of, an agricultural holding (“agricultural holding” has the meaning given by reference to the definition of “agricultural tenant” in section 65(8) of the Act).” With regard to this certificate, it was completed by Christopher Lee, but not signed.

A subsequent “Ownership Certificates and Agricultural Land Declaration” was submitted dated 16/10/2013. The applicant’s signature has been redacted on the Preston City Council public database and there is no other indication as to who has signed the certificate, the agent has not signed this certificate. On this certificate the owner is identified as Imperial Management, Lawson Street, Preston (NOT Imperial Management Co. Limited) but no partners are identified. A search of Companies House indicates that Christopher Lee has never been a director of ParkingEye Limited so cannot be the leaseholder, and that Imperial Management Co. Limited does not exist and never has. Similarly, there is no Imperial Management with a registered office in Lawson Street

Planning permission was granted by Preston City Council on this occasion, but only on a temporary basis for a period of TWO years, running from 23/12/2013.

On 11 February 2016 a retrospective planning application was made for continuance of the management of the car park by ParkingEye, again this was made to Preston City Council. The documents for this planning application can be seen attached to application number 06/2016/0103. This application was made by Miss Amy Nicholls of ParkingEye. The application states that the land is NOT owned by ParkingEye, and also states that permission/authorisation HAS been obtained by the landowner or tenant. With regard to the “Owner/Agricultural Tenant”, this is stated to be Lawson Street Car Park, and has been corroborated by Miss Amy Nicholls (though the form is unsigned).

A search of Companies House indicates that Lawson Street Car Park does not exist as a company (note that no partners names are given on the application by Miss Nicholls). Similarly, Miss Nicholls is not identified as a director of ParkingEye on the Companies House website.

At no point in any of the documents supplied to Preston City Council does ParkingEye identify who the landowner is and whose behalf they are acting. They have not indicated that they have the authority of the landowner for the management of the car park.

The BPA Code of Practice defines the mandatory requirements, including:

“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”

I also note that the signs on entry to the car park and near the ticket machines do not identify the name and address of the landowner (also see later)

As ParkingEye, does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. ParkingEye should provide strict proof of the contract terms with the actual landowner (NOT a lessee or agent).

Parking Eye have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and are merely acting as agents. No evidence has been supplied lawfully showing that Parking Eye are entitled to pursue these charges in their own right.

I have noted that, in POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

discontent64

POPLA letter based on template - part 2

2) Lack of signage – no contract with driver

I put Parking Eye to strict proof to produce, as well as a site map, photographs of the signs as the driver would see them on entering the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. The driver did not see any sign upon entering the car park; there was no consideration/acceptance and no contract agreed between the parties.
The car park was visited on 28 December 2016. The signs upon entering the car park were not visible from a distance and the words are unreadable. The entry to the car park is via a ramp from Saul Street, the signage as you drive up the ramp, is on the nearside and would sit below the level of the side window.

Further up the entry ramp is another sign which cannot be seen from the car as it is placed high up upon a pole and cannot be screen through the windscreen:

The signage near the ticket machines is similar. The vertical position is such that it is impossible to read the sign in that it falls below knee level and the small print makes the terms and conditions impossible to read. At the time of the alleged offence the weather was cold and it was raining, which made it harder. The following photograph is a close up of the sign:

Other signs were placed in the car park in a position whereupon they were not clear to the motorist, being placed low down on the perimeter walls. A letter height of just half an inch or less, showing the terms and the 'charge' and placed high or low on a wall or pole, or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up or low down on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a magnifying glass to be able to read the terms.

The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself in that the terms and conditions cannot be clearly seen. The signage is unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

As such, there was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

Under Lord Denning's “Red Hand Rule”, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge AND the terms to be displayed far more transparently, on a sign that was easy to see, in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a '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.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
3) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
’18.1.3 Objections are less likely…if a term is specific and transparent as to what must be paid and in what circumstances.
An unlit sign of terms placed too high or too low to read, is far from ‘transparent’.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.” Furthermore, Regulation 5(1) states that: “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”.
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: “A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

discontent64

POPLA letter based on template - part 3

3) Lack of signage advising proper usage of ANPR

The BPA code of Practice is explicit with regard to the use of ANPR in a private car park. Section 21.1 states “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.”

The signs in Lawson Street Car Park stated that the car park was “monitored” by ANPR systems”. To a member of the public this could mean anything; it could be to look for uninsured cars, stolen cars, or anything. The signage was not clear and explicit as to what the ANPR was being used for, the terms and conditions were not clear and transparent. The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.

4) Non compliance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, schedule 2

The above regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Claimant’s notice fails to comply with various clauses of Schedule 2, as follows:

2(c) – Requirement to provide a geographical address. The Claimant’s address is given as a PO Box number and post code. The signs on entry to the car park and near the ticket machines do NOT state the name and address of the landowner, with whom the driver is entering a contract. The signs therefore do not meet the requirements of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, schedule 2 requiring that where the trader is acting on behalf of another trader, the geographical address and identity of that other trader is given. This has not been done.

2(k) – Requirement to provide a complaint handling policy. This is not clearly described on the signage.
2(o) – Requirement to provide information about the right to cancel, or to state that there is no right to cancel. This is not clearly stated on the signage.
2(r) – Requirement to provide information about Codes of Conduct. This is not clearly stated on the signage.
2(x) – Requirement for access to an Alternative Dispute Resolution mechanism. Not clearly indicated by the signage.

Due to these significant breaches of the Regulations, it is submitted that I cannot be held contractually liable, according to the wording of the Regulations at 13 (1) “Before the consumer is bound by a distance contract, the trader must …”, this has not been done.

5) The Charge is not a genuine pre-estimate of loss
The signage and PCN issued by ParkingEye, states the charge is for ‘not fully complying with the conditions’, as such so ParkingEye must prove the charge to be a genuine pre-estimate of loss.
I overstayed the time paid for by 26 minutes as indicated by the camera on the ramp of the car park which acted as both entry and exit camera. The BPA code of Practice, Section 13 - Grace periods states
“13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
Thus I contend that the time of overstay was less than the 26 minutes
The Office of Fair Trading (OFT) expressed the view to the BPA that when claiming liquidated damages, they must meet the requirement of being a genuine pre estimate of loss. If back office functions are claimed, these must be directly caused by the breaches of contract. The OFT’s view was that if you have an office you will have to pay rent, rates, insurance, etc., but that these cannot be attributed to the breach and claimed as costs, as these are the costs of running a parking management company. To be recoverable, all costs, whether in contract or tort, must be caused by the breach. Further the OFT expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists. It will not be recoverable if the court finds that it is being imposed as a penalty. If a parking charge is imposed for parking beyond hours permitted under a contract, in order for it to be recoverable as liquidated damages, the court will need to be satisfied of a number of matters, including that it represents a genuine pre-estimate of the loss incurred and that it meets the requirements of applicable consumer protection legislation, for example the Unfair Terms in Consumer Contracts Regulations 1999. The OFT also expressed the view that the court will also need to be satisfied about who the consumer was contracting with and that this is the party bringing proceedings.
The car park at Upper Lawson Street, is Pay and Display. The MAXIMUM amount ParkingEye could claim is the amount required for that period of parking that my car was at the car park, which is FOUR POUNDS (see photograph).

discontent64

POPLA letter based on template - part 4 (no photos copied over)

In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated over and above the amount of the parking fee, I require ParkingEye to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.

There is no loss flowing from this parking event because the car park was no-where near full.
Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. Parking Eye would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

Given that ParkingEye charge the same lump sum for a 30 minute overstay as they would for 4 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.

The British Parking Association Code of Practice uses the word ‘MUST’ ie “19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be proportionate and commercially justifiable” hence, this charge must be based on the genuine pre-estimate of loss that is suffered.

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

ParkingEye’s ANPR records show no parking time, merely photos of a car driving in and out. It is unreasonable for this operator to record the start of ‘parking time’ as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of ‘parking time’ at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event.

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored (also see earlier). If there was such a sign at all then it was not prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.
In addition I question the entire reliability of the system. I require that ParkingEye 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 this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because 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 to show evidence to rebut the following assertion. 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 the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary and to show how these camera timings are synchronised with the pay and display machine.
7) Non-compliance with BPA Code of Practice [trying to think of a better title]
With regard to the appeals procedure, the BPA Code of Practice as applied to operators, explicitly states that
“19.6 If your parking charge is based upon a contractually agreed sum, that charge should not be punitive or unreasonable. If it is more than the amount in Clause 19.5 and is not justified in advance, it could lead to an investigation by Trading Standards or another appropriate authority.” I put that a charge of £100 pounds for an over stay of no more than 26 minutes, where the maximum charge is FOUR pounds, is both punitive and unreasonable.
Furthermore, the BPA Code of Practice states
“22.4 If a driver or keeper appeals a parking charge you must review the case and decide whether to uphold the parking charge and explain why it was issued and should therefore be paid, or reduce or cancel the charge and take no further management action other than informing the driver.
22.6 When you receive an appeal about the issue of a parking charge, you must stop work on processing the charge immediately. You must not increase the charge until you have replied to the appeal.”
I received the PCN on Thursday 1st December 2016, the letter being dated Saturday 26/11/16 to which I immediately replied and sent the appeal letter via the Royal Mail Certificate of Receipt. This indicated that my appeal letter was received by ParkingEye on Monday 5th December 2016.
On Thursday 8th December 2016 I received a further letter from ParkingEye stating that the charge had been increased to £100, this letter was dated Monday 5th December 2016 and was probably put in the post AFTER my appeal letter had been received. I received the letter notifying me that my appeal had been unsuccessful on Saturday 17th December 2016, this letter was dated Wednesday 14th December 2016. This timeframe indicates that Section 22.6 of the BPA code of Practice requiring the operator to STOP work on processing the charge immediately has potentially be contravened.
All letters arrived in unfranked, brown envelopes.
The BPA Code of Practice further states,
“22.8 You must acknowledge or reply to the appeal within 14 days of receiving it. If at first you only acknowledge the appeal, or your reply does not fully resolve it, normally we would expect you to seek the additional information you require from the motorist and accept or reject the appeal in writing not more than 35 days after the information required to resolve it has been received from the motorist. It is acknowledged that in exceptional circumstances, an investigation into an appeal may take longer than 35 days after such information has been received and in these instances the motorist must be advised accordingly and given a date by which they can expect a resolution. If this date cannot be achieved then the motorist must be written to again and a revised resolution date agreed. We may require you to demonstrate that you are keeping to these times”
The second letter from ParkingEye gave no indication as to why my appeal was rejected and no attempt was made to resolve the issue. Furthermore, no further information was sought.
I therefore require ParkingEye to provide strict proof regarding the procedures and processes by which letters demanding payments are instigated, times that the post is received by ParkingEye and the time by which the external post leaves their premises, I also require the procedures and processes with regard to handling the appeals process, and a demonstration of how this was applied in my case.
I put Parking Eye to strict proof to justify their charges under the circumstances described.
I therefore respectfully request that my appeal is upheld and the charge is dismissed.
Yours sincerely,

Coupon-mad

You have two x number 3, so get rid of this one which is out of date (UTCCRs disappeared into the CRA 2015):

3) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
’18.1.3 Objections are less likely…if a term is specific and transparent as to what must be paid and in what circumstances.
An unlit sign of terms placed too high or too low to read, is far from ‘transparent’.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.” Furthermore, Regulation 5(1) states that: “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”.
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: “A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I would also get rid of #5 and #6, because they are out of date. Never mention 'NO LOSS' and the stuff about ANPR will be ignored by POPLA and the supposed case of Fox-Jones was never proved with any transcript, not even a claim number. Synchronisation of ANPR data means nothing at all to POPLA Assessors.

discontent64

Many thanks for the constructive critique Coupon-mad. Will delete those 3 paragraphs.

For the instance where the wrong registration has been given, does the majority of the letter (the points that remain) still hold good? Should we bother putting down that the signage does not say what to do if the wrong details are entered.

discontent64

With the letter edited, is there anything else that you think we should put in? Taking those sections out does reduce the length of the document. We feel that POPLA will do their blanket "ignore all the evidence" and deem the parking company rejection upheld (which will come as no surprise). Do we need anything else in the POPLA appeal that we will later rely on in small claims court?

Coupon-mad

Try adding #6 and #7 from this one, suitably adapted to make sense:

https://forums.moneysavingexpert.com/discussion/comment/71327170#Comment_71327170

I work on the belief that a long detailed POPLA appeal is often enough to prevent a parking firm from contesting it, even if just due to the man hours involved to pick through the issues. Also they can see at a glance it's a forum-assisted appeal that has more chance of winning (they know it, we know it!).