Parking Eye Penalty Notice Charge - Canvey Island Seafront

FeelingLighterAlready

Hi all,

I have received a Parking Charge Notice from these rip off merchants again (had one last year for a different location which I successfully got cancelled). I have looked on the forum and just wondered if anyone could help me with a template letter to send to them to dispute this, as last year Morrisons were able to cancel it for me as the car park was behind one of their stores. However, this particular car park is based on the Seafront wall and opposite some shops and bars so dont think I can write to anybody else about it? The signage was most definitely NOT clearly displayed and I actually couldnt see a meter to pay either. My friend also parked in this car park that very afternoon and she didnt pay either for the same reason! Although she hasnt got a ticket yet.

Your help would be most appreciated.

Thanks :)

Browntoa

i assume you mean private and not council

FeelingLighterAlready

Sorry yes I meant to include Parking Eye in the content of my message as well as the title above it haha! But yes it is a Parking Eye notice charge....

leeda84

Ahhh my home town...

I believe this car park is ANPR controlled and you have to enter your reg in to the P&D machine (I've never needed to park there as my folks live about 10mins walk from the seafront).
I assume you received a notice to keeper (NTK) through the post? What are the dates on the notice?

Did you use any of the facilities, i.e. MovieStarr cinema or Monico pub and have proof of purchase? These places can cancel the ticket for you if you do so that would be my first port of call.

Coupon-mad

If you can't get the landowner to cancel it, just appeal as per the NEWBIES thread template.

And tell us if your PE PCN (and your friend's if she gets one) is a 'blank space' (non POFA) one as per the link in post#3 of the NEWBIES thread, received over 14 days after the event? This is important.

FeelingLighterAlready

Thank you all. I have just sent an email to the Monico pub (who are now known as SS8 Lounge) and have my fingers crossed that they can get this cancelled for me.

:-)

FeelingLighterAlready

Hi all,

I have had no response from the landowner that I wrote to above so I guess my next step is to appeal against the notice/fine with Parking Eye themselves....I will check the stickie as mentioned above for what I could possibly write back to them.

Ta

FeelingLighterAlready

Right so Parking Eye have said that my appeal has been unsuccessful and I haven't heard back from the nearby pub that I emailed about this asking to get it cancelled so what do I have to do now? This is the letter they have emailed me :-(


"Dear Sir / Madam,
Thank you for your correspondence in relation to the Parking Charge incurred on 02 April
2017 at 18:01, at Seafront, Canvey Island car park.
We are writing to advise you that your recent appeal has been unsuccessful and that you
have now reached the end of our internal appeals procedure. Our records confirm that no
parking was purchased on the date of the parking event, despite there being payment
methods available on the day in question.
Please be advised:
 There is an independent appeals service (POPLA) which is available to motorists
who have had an appeal rejected by a British Parking Association Approved
Operator. Contact information and further information can be found enclosed.
See also https://www.popla.co.uk
 As a gesture of goodwill, we have extended the discount period for a further 14
days from the date of this correspondence. If you appeal to POPLA and your
appeal is unsuccessful you will not be able to pay the discounted amount in
settlement of the Parking Charge, you will be liable to pay the full amount. If you
have already paid the reduced amount, the Parking Charge will be increased to
the full amount and you will be liable to pay this increase.
 By law we are also required to inform you that Ombudsman Services
(https://www.ombudsman-services.org/) provides an alternative dispute resolution
service that would be competent to deal with your appeal. However, we have not
chosen to participate in their alternative dispute resolution service. As such
should you wish to appeal then you must do so to POPLA, as explained above."

Redx

you have to read the NEWBIES sticky thread near the top of this forum, and draft a popla appeal and use it before 28 days have elapsed

FeelingLighterAlready

Hi all,

This is my first POPLA appeal letter and wonder if you could please cast your eyes over it and let me know if it's ok to send off as I did copy from a similar post in the same car park I was in.

I haven't mentioned it below but wonder if its worth mentioning? A friend of mine was parked in this same car park at the same time as me (she was actually there longer than me!) but she has not, to this day, received a parking ticket. Surely this is proof that the system is flawed? I didnt include it as I dont have any 'evidence' or 'proof' that this friend was also parked here at the same time as me and for longer but thought I would just see if you thought I should bother including it?

Thanks alot guys :-)


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

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye on [ ] at [ ], at Seafront, Canvey Island Car Park. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
3) No standing or authority to pursue charges nor form contracts with drivers.
4) The signage was not readable so there was no valid contract formed.
5) The ANPR system is unreliable and neither synchronised nor accurate - evidence does not discount two visits shown as one.

1) No genuine pre-estimate of loss
This car park is Pay and Display and as far as I can ascertain as keeper, a payment was made.

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

POPLA Assessor Chris Adamson has stated in June 2014 that:

''the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as 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!

I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was 'either/or' 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 NTK 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—
(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...'

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.

3) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye 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 therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkingEye.

4) The signage was not readable so there was no valid contract formed between ParkingEye and the driver
The only signs are up on poles, away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. 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 and the angle may well not show how high the sign is nor the fact the ParkingEye signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.

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.

5) The ANPR system is unreliable and neither synchronised nor accurate, and there is no evidence that this was just one visit
ParkingEye's evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. 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.

As keeper I cannot discount that the driver may have driven in, realised it was pay and display then driven out to get change before returning (and of course the ANPR cameras show only the first and last visits). The BPA even mention this as an inherent problem with ANPR on their website;

The BPA's view is: 'As with all new technology, there are issues associated with its use:
a) 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.
b) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Even if an Operator shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All camera records could be checked and this Operator would still be unable to refute the 'double visit' possibility, since they don't bother to record continuous footage, this not being CCTV. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.

Further, 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 and used. I say that Parking Eye have failed to clearly inform drivers about the cameras and how the data will be used and stored. . 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. Indeed, 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.

This concludes my POPLA appeal.

Coupon-mad

Is this that car park that's badly pot-holed, sporadically signed and shows pics of the car outside the barrier, actually on the approach road, not within the car park at all? That point needs including, if so. No evidence of the car being within the car park let alone how long it may have parked for.

And you need to look at more recent POPLA appeals, you cannot use this since 2015, so back to the drawing board, none of this:

No genuine pre-estimate of loss