Help with parking eye appeal to popla for 17 mins stay

nikkietoni

I have helped a friend with her appeal to popla. Any help appreciated.
17 minutes stay while trying to use pay machine which was broken



l) Keeper Liability Requirements and The Protection of Freedom Act.

The notice to keeper omits wording required by Paragraph 9 of Schedule 4 of the Protection of Freedom Act 2012. Parking Eye have not included on the notice to keeper about how much has been paid and how much remains unpaid. The creditor must have given a notice to keeper in accordance with paragraph 9.
"The notice must:
b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.
c) Describe in full the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose(including the means by which the requirement was brought to the attention of the drivers) and the other facts that made them payable.
d)Specify the total amount of the parking charges that are unpaid, as at a time which is-
(i) specified in the notice: and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper(see sub-paragraph (4)"
I refer to the Parking Charge Notice issued to me by Parking Eye as a Notice to keeper. I confirm that I am its keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 and I formally challenge the validity of this Parking Charge Notice. The strict requirements of Schedule 4 of POFA have to be followed in order for a parking operator to be able to invoke keeper liability for a Parking Charge.
The notice to keeper states "by either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted in accordance with the terms and conditions set out in the signage the parking charge is now payable...."
Therefore the circumstances in which the requirement to pay the parking charges arose is not specified and unclear on the notice to keeper.
Parking Eye have not told me what was paid , if anything was paid, and what is still outstanding which is a breach of Schedule 4 of POFA 2012. Therefore the Notice to Keeper is not compliant.
They have failed to invoke keeper liability as the Notice to Keeper omits wording required by paragraph 9 of schedule 4 of POFA 2012.
Therefore there is no evidence from Parking Eye to show a breach of the conditions of parking


2)Parking Eye have no Standing or Landowner Authority to pursue charges nor form parking contracts or enforce them in court in their own name.

Parking Eye have no authority to issue parking contracts nor to pursue to court as required in the BPA code of practice. The Parking Eye Contract should be with the Landowner and not a company leasing the land . Parking Eye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. i.e.
7) Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent. The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. ln particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining
e) the definition of the services provided by each party to the agreement.
As Parking Eye have no proprietary interest in the land and do not own the Car Park
and are not the landowners they have no standing to make contact in their own right or to pursue charges for breach in their own name. A commercial site agent for the true landholder has no automatic standing or authority in their own right which would meet the requirement of Section 7 of the BPA Code of Practice- Parking Eye should therefore provide to POPLA and myself a contemporaneous and
unredacted and dated and signed actual copy of their contract with the landowner which would then demonstrate that Parking Eye have the authority of the landowner to both issue parking charges and legislate in their own name or on behalf of the landowner who can then support their claim. A witness statement from someone leasing the land or another agent, or retailer, or other land-holder would be insufficient and unclear whether the landowner has authorised the necessary rights to Parking Eye, as this would not hold all the information required and so there would be no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract or is even an employee of the landowner. If a witness statement is submitted it should be accompanied by a letter on the landowner's headed paper and signed by a director or equivalent of the landowner confirming that the signatory is authorised to act on behalf of the landowner. The contact should state that Parking Eye Ltd. Are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name.
I therefore dispute Parking Eye have the authority to enter into contracts regarding the land or to pursue charges allegedly arising. Any loss is to the landowner and only they can bring action


3) Grace Periods
The British Parking Association (BPA) Code of Practice, section 13.1 “must allow a driver who enters the your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a PCN”. In the BPA Code of Practice section 13.2 it also states “you should allow the driver a reasonable grace period to decide whether to stay or go” The BPA Code of Practice also sets out that a grace period is to allow a motorist an opportunity to find a space to park up and then locate the signage and then read and understand the terms and conditions if able to get close enough and to choose whether to park or not before enforcement action.13.4 it states "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....a minimum of 10 minutes" It is the appellant’s responsibility to choose whether to remain on site in line with the terms and conditions. From this, I consider 17 minutes for entering and leaving falls within a reasonable grace period. The machine was out of order this particular day so therefore if it is deemed that a contract was formed it can be argued that that any contract was frustrated as no one could uphold their end of any contract because the Parking Eye incompetent facilities did not allow it. There is only one pay machine at this Car Park . Also the signage in this car park did not clearly state that the "parking period" began as soon as the vehicle entered the car park. It can also be argued that the vehicle was not parked at all during the 17 minute period. As the vehicle was within the car park while signage was examined and also the pay machine located and also read and examined and finding money to put in the machine as there are no signs at the entrance of the car park so therefore no choice but to enter the car park to decide if parking is viable.there can be no case if the vehicle was not actually parked in a car park space, but circling. In the case of Parking Eye versus Hotchin (2014) the judgement found that circling or otherwise remaining in the car park for a 31 minute period did not constitute parking. Therefore there is no evidence that the vehicle was parked for the duration of the alleged incident. The tariffs and penalty charge are not displayed at the entrance , thereby Parking Eye is ensuring the driver has to enter the car park to obtain the information . The entire terms are obscured if vehicles park near the wall on the lower signs. The other signs are too high to read the terms and conditions. The small print appears to have not been put there to inform as so tiny. I require that parking eye includes details of all signs including height and font sizes of all wording so it can be established how much smaller the important "terms and conditions" are compared to the other wording .
No information on the signage clearly indicates that a car park user has to pay from when a moving vehicle enters the car park until the moving vehicle moves out of the car park. Therefore no one is informed by any clear or any obvious signage that time keeping is undertaken by ANPR.
As the operator has failed to fully allow for grace periods this appeal should be upheld.


4)The Car Park had and has Confusing Misleading Unclear contradictory inconsistent ambiguous inadequate signage and insufficient information so is not compliant with the BPA Standards code of practice and has unreasonable and unfair terms so no contract is formed with Parking Eye and therefore no agreement .

I believe the signs that Parking Eye are relying on at the car park were confusing and misleading, also the small print is too small for anyone to see read or understand . The signs do not properly and clearly warn and inform the terms of this car park correctly and as such failed to comply with the British Parking Association Code of Practice Part 18 appendix B.
Some of the signage is not easily seen being at least 7 feet high and well above eye level and as such is against the BPA Code of Practice requiring signage to be ample and visible.
The signs are so high above eye level the terms and conditions would only be legible if a driver got out of the car and climbed a stepladder to try to read them. In any photos supplied by parking eye in evidence I require them to state the height of each sign.
Unreadable signage breaches Appendix B of &e 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.
l8)
18.1 )A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver's use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.
18.3) Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible
language, so that they are easy to see, read and understand.
Also there are no entrance signs or other signs that say there is any "free period of parking" during which there should be time allowed to park and read the terms and conditions and decide whether to enter into any contract or not, which is a requirement under contract law.
For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park.
Most Signs are positioned at a height of at least 7 feet so a driver has to exit the vehicle to try to read and understand the signs .

5)The amount charged is a disguised penalty and not commercially justified.

There was no agreed contract and the sum is unfair, unreasonable and unrecoverable . The charge from Parking Eye as a third party business agent is an unfair unenforceable penalty and differs from the 'Beavis v Parking Eye' judgement as this is a pay and display car park unlike the free car park in the Beavis case. And therefore there is no compelling commercial interest in maintaining turnover. The exit photograph is not evidence of 'parking time' at all. This charge is for an alleged breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified , that Parking Eye who are the non-land-owning third party can claim a sum in excess of any damages.
Unlike in Beavis, it is argued that this charge has been artificially inflated and Parking Eye have failed to disengage the 'penalty rule' by virtue of a want of good faith and also a failure in their duty to deal fairly with consumers and a failure to follow the requirements of their industry's Code of Practice. £60 and £100 is hugely disproportionate to any alleged unpaid tariff. Parking Eye cannot justify how an alleged over-stay in a paid 24-hour car park incurred a loss of £60 or £100.They have failed to supply sufficient evidence to justify this cost because of the plain fact that it is unjustifiable; it is an arbitrary figure that they have invented. And there is no commercial justification as the landholder has no incentive to maintain turnover of spaces at that location as a motorist can stay longer in the car park if required and in fact can stay all day and night if they wish by paying ? As such it is an unenforceable penalty.
The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. For this charge to be justified, a full breakdown of the costs Parking Eye has lost as a result of the car being parked at the car park, is required and should then add up to £60 or £100. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of costs such as 'staff time spent on appeals' and other tax deductible business costs like administration, accounting & equipment. The staff hired are already paid to do their jobs so there is no "loss" for their normal activity as apparently only ? of cases follow the POPLA route. Therefore these costs are part of the usual operational costs irrespective of any car being parked at that car park.
Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis case was based on the use of that particular car park which was free and the charge should also be disregarded as the judgment simply reaffirms that the decision was justified to ensure motorists left within 2 hours for the good of all other drivers and the facility . As previously mentioned in this situation there is no such justification. As this was a Paying car park, the Notice to Keeper has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the
driver should have paid because no higher sum was 'due before the PCN was even printed. On the Notice To Keeper it only states that the car was in the car park for a certain amount of time and that the contravention was an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the Notice to Keeper the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.
These are the omissions: '
'9(2)The notice must-
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...,
This NTK was not compliant due to the omission of statutory wording
Therefore as such it is an unenforceable penalty.
Therefore Parking Eye have not told me what was paid, and what is still outstanding which is a breach of Schedule 4 of POFA 2012.So the notice to keeper is not compliant.
No comparable legitimate- interest nor clear prominent signage terms, the case is a simple economic transaction (re a quantified tariff) which can be differentiated from the entirely different complex contract in Parking Eye v Beavis.

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

The small ANPR camera image is located in the lower corner of the sign so is not immediately obvious. I refer to Section 20, Paragraph 5 (S20P5) of the British Parking Association Code of practice:
"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. AlI photographs used for evidence should be clear and legible and must not be retouched or digitally altered." -
Parking Eye is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under (paragraph2l.3)parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require Parking Eye to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. .Also the signs fail to inform that the actual entry where the cameras are start the period of so called "parking" and only exiting past the cameras completes that period. The total time spent parked in a bay is different. ,As such the contractual parking time inferred is insufficient to form a proper contract.
The ANPR system is unreliable and neither synchronised nor accurate. Parking Eye's evidence shows merely photos of a car driving in and out possibly as there is no surrounding photographs showing the car park as well therefore it can only be surmised this happened .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 paying system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay machine clock nor even to relate to the same parking event.
No signage at the car Park clearly tells drivers about this technology nor how the data captured by ANPR cameras wiII be used and stored.
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 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 produce the contrary with records and photos.
21.1) You may use ANPR camera technology to manage control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 )Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.
21.3 )You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents

Time in the Car Park is not a period of Parking. The motorist must be given time to park and read the signs and find a ticket machine and have time to leave the site at the end of parking . And also search for a member of the Parking Team to enquire about anything that is confusing about the sign, for example whether further parking can be paid for on return to the vehicle.. It is confusing about when to pay this. The ticket is also confusing as when you take a ticket out of the machine it is no indication on when you entered the car park and when you should get back to your vehicle , as the only information on the ticket is the time you put your registration number? into the machine. Therefore it is not indicative of the time entering the carpark and cannot be used as accurate reference as it does not state when the free period ends.. The signs say to take a ticket after putting in your registration but it does accept any registration put in so there is no room for error. Nowhere does it explain what to then do with the ticket- not what to do after this? So you have the ticket with no further reminders ,that you have a certain amount of parking and may purchase further hours (and if that is the case when you can purchase it) or if a person is late back they may get fined £100 So therefore no reminder of charges and penalties so very misleading and confusing once again. The British Parking Association Code of Practice states the motorist must be given time to read the signs and time to leave the site at end of parking .
The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers are "...parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract."

On the basis of all the points I have raised in my POPLA appeal the parking charge notice fails to meet standards set in the British Parking Association Code of Practice .I reject the charge and would appreciate that you review all my points and allow the appeal . I require Parking Eye show records as to the date and times of when the cameras were checked, adjusted, calibrated synchronised with the times which stamps the photographs and were maintained to ensure accuracy regarding dates and times
The PCN shows two photographs from the ANPR showing the vehicle number plate but not showing the location the vehicles were photographed therefore this cannot be perceived as adequate evidence.

I request that POPLA agrees with me that Parking Eye has no valid claim against me and the PCN be cancelled in full.






Sent from my iPad

Fruitcake

There is a much longer template appeal version of the Inadequate Signage point in post 3 of the NEWBIES thread. It might be better to use that one instead.

Coupon-mad

And I would remove #1 unless it is a non-POFA version of a PE Notice (there is an example of one, in post #3 of the NEWBIES thread). POPLA will not agree that a PE 'POFA' version served within 14 days is not compliant.