Parkingeye fine - Aire Street Leeds

Silvercloud18

No, popla were a big ridiculous, inconsistent joke! Cheers though

On another note I've had my email from ParkingEye saying they've received my reply to their letter before court and will respond in 30 days.

:cool:

thehoneybee

12th May 2018

PCN No:
POPLA Ref. No:
VRN: !!!8232;!!!8232;Location: Aire St., Leeds
I am the Registered Keeper of the vehicle and this appeal will show that I am not liable for this parking charge.
The driver parked in the Aire Street car park in Leeds on Sunday 18th March 2018 and purchased a ticket for a stay which commenced at approximately 11.35 and expired at 18:00. The driver returned to the car around 17:05 and left the car park well within the time allowed by the ticket.
On the 25th March 2018 a “Notice to Keeper" was received claiming that £100 was due due to either “not purchasing the appropriate parking time or remaining at the car park for longer than permitted”.
I submit the points below to show that I am not liable for the parking charge:
• A valid ticket was purchased for the period of parking.!!!8232;• Unreasonable and unfair terms – no contract agreed to pay £100. Fails the
‘Aziz test’.!!!8232;• The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.!!!8232;• No standing or authority to pursue charges nor form contracts with drivers. • Unreadable signage – breaching Appendix B of the BPA code of practice.
A valid ticket was purchased.
The driver, who is dyslexic, purchased a ticket on arrival, entered the car VRN and left within the time allowed by the ticket thus complying with the terms and conditions.!!!8232;
Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.
The sign was ambiguous and unclear because the entire sign is about 'PARKING TARIFFS' (not 'total stay') and the sign creates no obligations except to:
• 'enter your VRN correctly’ (it says 'you must' and the driver complied with that term).!!!8232;• 'park within bays' (the driver complied with that term).!!!8232;• 'Blue Badge holders - tariffs apply' (OK, but not relevant and not an obligation upon us).
The only place the word 'stay' is mentioned on the sign is where it talks about maximum stay of 14 hours, the rest is all about 'parking time'. So as the P&D machine is the 'point of sale' and the P&D ticket is the receipt upon which an ordinary consumer would rely for the parking time, there was no contravention of the sign. The only contract agreed was to pay the tariff and return before expiry.
It is wholly deceptive and unfair on drivers to impose a different time limit from cameras, than the time limit set on the Pay and Display ticket.
Deceptive information which causes a consumer to take a different decision than they would have done, which then causes them detriment, is unlawful under the 'misleading actions' section (7.3) of the CPUTRs.
This was undoubtedly a ‘concealed pitfall or trap’, which resulted in a disproportionate and unfair charge which placed an unfair burden upon the driver, breaching Schedule 2 of the UTCCRs and the Unfair Contract Terms Act:
‘’SCHEDULE 2 Regulation 5(5) INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE!!!8232;REGARDED AS UNFAIR - 1. Terms which have the object or effect of –
(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;!!!8232;(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract...’’
Unfair Contract Terms Act 1977:!!!8232;‘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.’
In our case, the driver relied upon the expiry time on the Pay and Display ticket. They returned to the car well within the time allowed so complied with all the P&D machine terms and the driver NEVER agreed nor accepted any contract to pay £100.
Obviously if drivers had any idea their P&D ticket would not be the time under which they would later be bound and that the operator held all the cards with a secret timing already working against them, they would not park at this car park at all because this is contrary to good faith.
In the Barry Beavis v Parking Eye hearing at the Supreme Court in July 2015 the matter of the Aziz test was discussed, relating to the ECJ case: Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5.
The question arising from that binding case is whether a term would have been agreed, had the parties sat down with a blank sheet of paper and negotiated the term in advance. I can state as an indisputable fact that the driver would without a shadow of doubt, never have agreed to this term, had it been negotiated in advance and if we knew then what we know now the driver would never have entered a ParkingEye run car park and never will again.
A Pay & Display machine system is incompatible with ANPR enforcement; an operator cannot run two systems with two timings and favour the one which operates disadvantageously to consumers.
Under the Consumer Rights Act, the question of unfairness in any consumer contract must be considered by the Courts (whether a consumer raises this issue or not) and therefore by definition, should also be a consideration of an ADR prior to court. It is suggested that it would be unjust if POPLA were to settle on anything less than a consistent approach: i.e. that any PCNs where operators have acted or operated unfairly, like this one, should be cancelled.
This was no agreed contract and the sum is unfair, unreasonable and unrecoverable.
ParkingEye may contest that they use the ‘widely recognised’ symbol consistent with ANPR parking however I counter that their point by saying as a reasonably well-informed and diligent person, the driver did not recognise such symbol nor could they be expected to. Such a symbol is so generically usually used for the safety and security in all manor of environments and it by no means generates the assumption that your ‘stay’ in the car park should be limited by anything other than what’s on your P&D ticket.
Inaccurate ANPR System
The ANPR cameras are not identified upon entry to the car-park. Although these systems have a reported high accuracy rate, there is well recorded evidence of them being prone to error and inaccuracy. Photographs produced as evidence by them, can be easily digitally altered. They do not prove the identity of the driver. Simple entry and exit photographs purported to be from the stated car-park do not prove unquestionably that the vehicle actually; entered and left it; parked within its boundaries, and remained parked within it for the alleged time.
On the NTK, the car is shown entering the car park at 11:34. However an occupant of the car was engaged in an exchange of text messages with a friend that they were meeting. A text message was received at 11:14 as the car was entering the car park. I therefore put ParkingEye to strict proof that the ANPR system was calibrated and recording the correct entry/exit times that day.
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! The PCN sent provides no such clarity and does not mention the correct fare that should have been in such a situation. I would posit that this is because the terms are so byzantine that it would be near impossible to create a clear set of instructions for potential customers.
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 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. !!!8232;
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:!!!8232;''9(2) The notice must—!!!8232;(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;!!!8232;(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...' NTK is not compliant, for example re this requirement:
The NTK specifically fails on all counts.
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.
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.
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, to try to read them. Any photos supplied by ParkingEye to POPLA will no doubt show the signs in a favourable manner omitting the fact the ParkingEye signs are one of many pieces of information in the clutter of this busy customer car park. Consider the difficulty someone with dyslexia may have when trying to decipher such a volume of confusing information. !!!8232;
!!!8232;!!!8232;It should be noted that the driver is dyslexic as mentioned previously.!!!8232; !!!8232;
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.
This concludes my POPLA appeal.

Yours faithfully

Quentin

@honeybee


pointless you posting your appeal here in someone else's thread


Copy and paste it in your own and delete it from here

Umkomaas

Quentin wrote: »

@honeybee


pointless you posting your appeal here in someone else's thread


Copy and paste it in your own and delete it from here

And format it so people have a chance to read it. No one will plough through that massive wall of text (without ending up with a huge headache!).

Silvercloud18

Popla were useless for me so I'm afraid it won't help me... I'm at pre court stage honey bee

Silvercloud18

I've today, via email, received some standard email response to my letter/email from PE.

Basically a list of what I would describe as general FAQs.

Then referring to my failed popla appeal and I still owe £100. Saying I was advised by POPLA to pay in full to avoid further action?! Not sure I remember that bit *eye roll*:cool:

Assuming now I just wait for my court letter? Or do I again respond to this?

Redx

POPLA would have told you this in their refusal , but you are under no legal obligation to pay unless a judge says so

if PE failed to answer your LBC questions in full, repeat them again by continuing this rebuttal to LBC stage , ie:- you should ALWAYS continue this ping pong

if they issue an MCOL , THEN ITS SHOW TIME

MEANWHILE, you could also send tham an SAR bomb using the new GDPR 2018, in order to obtain all their evidence etc and make them work for a living

plus this info will be useful in any further correspondence or court case

Silvercloud18

They probably did mention but not quite as forceful as made out lol.

Thanks, they've given general answers and not directly to my questions.

So I just send the email again saying something along the lines of as you have failed to answer I am re sending?

Thanks will look up the SAR

Silvercloud18

The most interesting part was the paragraph on how they decided a contract was made. Basically via the signs.

Would it help to copy their FAQs or can people get the gist?

Umkomaas

Thanks will look up the SAR

This thread will help.

https://forums.moneysavingexpert.com/discussion/5849784/june-2018-start-of-the-new-ppc-and-dvla-fightback-gdpr-related

The most interesting part was the paragraph on how they decided a contract was made. Basically via the signs.

Exactly as stated by them, and confirmed by The Supreme Court in ParkingEye v Beavis, and why we recommend that anyone receiving a PCN should get close up and legible photos of the signage in the car park.