POPLA appeal letter - PARKINGEYE Macklin Street

jessAM

Hello

Please could I have some help with a POPLA appeal.

When I (the keeper) received a ParkingEye PCN in the post, I handed it to my husband (the driver). Since he paid for parking he, unfortunately, naively, appealed on the basis he paid for parking. Therefore, when appealing, owning up to being the driver.
The appeal was rejected on the basis he contravened the terms and conditions as he only entered a partial Registration number (VRN). As a guesture of goodwill they reduced the charge to £20, he appealed again as it was a genuine mistake and our local parking only requires the number. (Note the ticket machine asked for the full registration number, therefore he only put the number in).
They rejected it again and increased the charge to £60 and gave us a POPLA code.
I am writing an appeal for him, would someone be able to review the appeal points for me and let me know your thoughts please. I’m not sure if I’ve gone overboard on the points and if they are all relevant.

My points for appeal are:
1. There are no entrance signs for the regular entry and signs in this park are not prominent, clear or legible from all parking spaces.
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3. No planning permission from Derby City Council for Pole-Mounted ANPR Cameras and no advertising consent for signage and permission to use land as car park for anything other than for the Rangemoor hotel
4. The signs fail to transparently warn drivers of what the ANPR data will be used for (Failure to comply with the data protection ‘ICO Code of Practice’ applicable to ANPR)
5. Vehicle Images contained in PCN: BPA Code of Practice - no compliance
6. The ANPR System is neither reliable, synchronised nor accurate
7. No evidence of period parked - NtK does not meet PoFA2012 requirements
8. No genuine pre-estimate of loss
9. The charge is a penalty, breaches the CRA & is not saved by ParkingEye v Beavis
10. No Contract was entered into between the ParkingEye and the Driver or Registered keeper
11. Consumer Contract Regulations 2013 and private parking

Looking at Derby City Council planning website, there is only one planning permission request for the piece of land in question (from July 1991 to turn the use of land into a car park for Rangemoor Hotel, no mention of a paid for car park). The planning permission documents are not online so I have requested them.

As we don’t live in Derby we don’t currently have photos of the signage or car park but will be getting it shortly. Also, I don't have the original letter with me but I don't recall any mention of PoFA, I am assuming as we have admitted the driver, this is not a relevant argument?

Once the appeal points are confirmed I’ll update with the appeal letter.

Many thanks

Coupon-mad

Forget the POFA as the driver was admitted. Never make that mistake again!

POPLA codes last for 32 days so put it to one side for now (but check, how long have you got, seeing as you wasted time appealing twice?).

Forget POPLA until this weekend, and do two things first as a real fightback:

- complain to the landowner. Hotel? Were you patrons? Make them get it cancelled and if they come back and say ''good news, you only have to pay £20'' ask that they pay it off due to the harassment and horrendous reputation of their chosen parking firm, ParkingEye, and their Trade Body the BPA, who were BOTH named and shamed in Parliament in February (watch the video, to be well informed about what you are complaining about):

https://forums.moneysavingexpert.com/discussion/5787731/parking-code-of-practice-bill-passed-by-mps

https://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

So that's the first thing to do, today when you read this - URGENTLY - assuming there is scope, i.e. I assume that you were genuine patrons of the Hotel? Getting it cancelled CAN be done by the Hotel before POPLA, but NOT after...hence doing this FIRST, to quash it easily, in case you lose at POPLA.

The appeal was rejected on the basis he contravened the terms and conditions as he only entered a partial Registration number (VRN). As a gesture of goodwill they reduced the charge to £20, he appealed again as it was a genuine mistake and our local parking only requires the number.

Second thing to do today, a specific style of 'data restriction' email to ParkingEye:

RECTIFICATION NOTICE

Search the forum and show us your version of a letter invoking your right under articles 16, 18 and 19 of the GDPR, to ask PE to (quite simply) ask the parking firm to rectify 'inaccurate data' and to restrict and cease* processing the data whilst the error is 'rectified'.

A trader can't ask for £20 to rectify inaccurate data that they should have spotted and matched with the data stream showing the full VRN, it was hardly rocket science and should have been spotted and easily rectified by human intervention as part of ParkingEye's infamous '19 checks' before issuing any ANPR PCN!

Show us your robust Rectification Notice effort, copied and adapted from all the others (you can search my posts for some recent ones if you like), and get it emailed TOMORROW to PE:

info@parkingeye.co.uk

...with the usual DPO 'urgent RECTIFICATION AND RESTRICTION OF DATA NOTICE' subject line, and the xxxxxx/xxxxxx PCN number, of course.

Add a line near the start that tells them NOT to waste time asking for Identification/a copy of your V5, because this is unlawful and unjustified, given they know who you are, already have your email address from the appeal made, and have the DVLA data which already identifies you as the registered keeper.

Send this in YOUR name because you want YOUR personal data (the VRN) rectified. But add both your names at the bottom of the email, because they might protest that they are dealing with the driver alone - so both put your names to the Notice to stop them bleating.

IMHO, it does not matter that the initial error of data was by the driver; there is nothing in the GDPR that apportions blame for the origin of inaccurate data, and nothing that says you can't ask to rectify data if the 'slip' was yours.

Let's test this with the ICO, if PE refuse to 'rectify' the error at no cost.



*and...don't forget POPLA for too long - think how hard that will make it for PE when you do your POPLA appeal THIS weekend, if the Hotel complaint doesn't work or is not an option for you! Due to investigating your Notice and having to get their DPO to reply, PE will be unable to process data to reply to POPLA, LOL!

jessAM

Many thanks for the great advise, and don't worry I won't be making the named driver mistake again!
Our letter says the POPLA code lasts for 28 days, which means it runs out on Monday 17 Sept(!)

It is now a public carpark and can be used by anyone, the hotel is no longer running and a quick look on Google Maps shows it is in disrepair, so I don't believe PE have right use issue tickets on the land, but that's another issue.

In regards to the signage/ownership of the carpark, the signs are confusing, the entrance states it is a GCP carpark and most of the signage inside suggests the same, however there is also PE signage (which looks bigger than 0.3m2

In regards to the rectification notice, I have written up a letter please let me know your thoughts. We have never contacted PE with my email address only my husbands, should I email this from my address?


Subject: Urgent RECTIFICATION AND RESTRICTION OF DATA NOTICE

Dear Sirs,

FTAO the Data Protection Officer, ParkingEye
RECTIFICATION NOTICE

In relation to reference xxxxxxx, ParkingEye is breaching the GDPR in its data storage and continued processing of the VRNs of a vehicle belonging to me, and your inaccurate data use is causing me detriment, distress and potential loss, contrary to the Data Protection Act and contrary to the Information Commissioner Office's (ICO) ANPR/Surveillance Camera Code of Practice.

The ICO has already confirmed that a VRN is 'personal data'.
Do not try to delay matters by an unjustifiable request for 'ID'; you have no right to inspect my V5 for the vehicle and I am named on the V5 however was not the one driving, and you already know who I am and can identify me from this email and the information in it. ParkingEye holds full information, including my full name and address and you can identify the VRN is connected to me. I remind you that personal data that identifies me will undoubtedly include the VRN of the vehicle, in the context of the known facts of this case.

ParkingEye is already aware of the inaccurate data yet continues to process it, and this data processing failure must cease, and be rectified immediately. ParkingEye is aware of the following facts already and has no excuse in law for its conduct, given its duties under the GDPR, and the right of a data subject to request rectification:

ParkingEye and your agents are at fault, and this fault lies squarely with your Data Protection Officer (DPO) for failure to ensure the timely and accurate data handling of VRNs, by your chosen agent. I require you (and any other agents of yours) to stop processing the vehicle registration details immediately, whilst your DPO undertakes the necessary check to identify and rectify the 'inaccurate data'.

The VRN in question is:
- xxx xxxx

It does not take much for a professional parking company to 'join up those dots' of data information, rectify/erase or overwrite the inaccurate data stream in-house, and apologise for your system errors. ParkingEye had more than one opportunity to consult both data streams within your full control, recognise any mismatches and act fairly, especially after being alerted to it when receiving an appeal corroborating that this automated data error has occurred. ParkingEye should have simply put it right, as the GDPR requires, and your DPO will know that the law has no caveats allowing a trader to continue using inaccurate data in order to pass blame to and sue a consumer.

As well as data protection law, it seems to me that ParkingEye is in breach of:

- the Consumer Rights Act 2015 (key consumer rights law, covering contracts for goods, services, digital content and the law relating to unfair terms in consumer contracts).

- the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which relate to distance contracts such as this which involve an exchange of information (more than just a single text) and require certain prescribed information to be accurately supplied in a timely manner.

- the Consumer Protection from Unfair Trading Regulations 2008 (specifically, section 6 'Misleading Omissions':
6.—(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—

(a) the commercial practice omits material information,
(b) the commercial practice hides material information,
(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,
...and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

There is a question of proportionality, and the risk of loss or detriment to consider, given the context of the''outrageous scams'' (Hansard 2.2.18) operated on a daily basis by so-called 'accredited' parking companies and their widely reported propensity to use 'any old excuse' to issue millions of unfair and predominantly automated and unchecked 'parking charge notices' every year.

You had the information and data streams you needed all along, and I assert that with the advent of the GDPR, parking firms have no lawful excuse to punish and blame drivers for such errors and mismatches, where the data is easy to rectify and causes no loss to your company given that the ICO's ANPR CoP actively requires you to make checks to avoid errors and ensure human intervention is applied to what is otherwise a purely automated decision.

This is undoubtedly a serious matter for the ICO to consider. Failure by ParkingEye to assume the responsibility to put right the error will be reported to the ICO without delay, should you refuse this rectification notice.

I require a reply from your Data Protection Officer within 30 days, and I wish to exercise my right to request 'restriction of the processing' of my personal data while ParkingEye check it, in accordance with Article 18 of the GDPR.

For the avoidance of doubt, this notice means that you now have no option but to cease/put 'on hold' any planned legal action because you are now legally barred from processing my data, and so are BW Legal or any other agents acting on your behalf.

Yours faithfully,

Umkomaas

Our letter says the POPLA code lasts for 28 days, which means it runs out on Monday 17 Sept(!)

That's the official span, but we know, from many past cases, there is leeway of 3-4 days beyond.

We have never contacted PE with my email address only my husbands, should I email this from my address?

I'd keep everything consistent throughout, otherwise there is some potential wriggle room for them to come back to query things.

For the avoidance of doubt, this notice means that you now have no option but to cease/put 'on hold' any planned legal action because you are now legally barred from processing my data, and so are BW Legal or any other agents acting on your behalf.

BW Legal never act for PE, so omit their name from this paragraph.

jessAM

That's great, thank you for your help

jessAM

Hello

I have written up a draft POPLA appeal letter, I would appreciate if someone would be able to look over it for me please.
I was going to include a point on Consumer Contract Regulations 2013 and private parking but I didn't quite understand it enough to talk about it!

I received a letter dated XXXX acting as parking charge notice issued quoting “Not purchasing the appropriate parking time or by remaining at the car park for longer than permitted”. My appeal to the operator - ParkingEye - was submitted and acknowledged on XXX August 2018 but subsequently rejected by a letter dated 20 August 2018. I contest that I am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1. There are no entrance signs for the regular entry and signs in this park are not prominent, clear or legible from all parking spaces.
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3. No planning permission from Derby City Council for Pole-Mounted ANPR Cameras and no advertising consent for signage and permission to use land as car park for anything other than for the Rangemoor hotel
4.The signs fail to transparently warn drivers of what the ANPR data will be used for (Failure to comply with the data protection ‘ICO Code of Practice’ applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach Signage non-compliant with the BPA Code of Practice and no contract formed with driver)
5. The ANPR System is neither reliable, synchronised nor accurate
6. No genuine pre-estimate of loss
7. The charge is a penalty, breaches the CRA & is not saved by ParkingEye v Beavis
8. No Contract was entered into between the ParkingEye and the Driver or Registered keeper

jessAM

Appeal Points expanded

The signage 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 at the machines.

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

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.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

[LINK REMOVED}

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:
[LINK REMOVED]

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are 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.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:
[LINK REMOVED]

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
[LINK REMOVED]

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

...and the same chart is reproduced here:
[LINK REMOVED]

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high 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 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 stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

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 lower sign and 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.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:
[LINK REMOVED]

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

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.

The signage in Macklin Street car park is confusing at best, the signage at the entrance implied it is owned a run by Grand Car Parks (GCP) as well as the majority of the signage within the car park indicating it is run by GCP, whereas there are few (and potentially illegal) signs relating to ParkingEye.

2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

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

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

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

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:
a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d who has the responsibility for putting up and maintaining signs
e the definition of the services provided by each party to the agreement


3. No Planning permission from Derby City Council for Pole Mounted ANPR Cameras and no Advertising Consent for signage

ParkingEye does not have Planning Permission for the pole-mounted ANPR cameras (see Figure X), nor do they have Advertising Consent for signage exceeding 0.3m2.

Derby City Council ePlanning service shows the only planning permission regarding this piece of land (behing 77 and 79 Macklin Street) was granted in 1991 to serve as a car park for patrons of Rangemoor Hotel. The Rangemoor hotel ceased to operate in early 2017 and has since been left in a state of disrepair.

This clearly proves ParkingEye are/have been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment (pole-mounted ANPR cameras) for which no planning application had been made.

I request ParkingEye provide evidence that the correct Planning Applications were submitted (and approved) in relation to the pole-mounted ANPR cameras and that Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates (19/07/2018).

The common law principle “ex dolo malo non oritur actio” which means that a court should not lend its aid to a man who has committed an immoral or illegal act. In this case, if the parking company has not legally erected signage, then then should not be able to profit from it.

4. The ANPR signs (if any) fail to state how the data will be used - Failure to comply with the data protection ‘ICO Code of Practice’ applicable to ANPR

The BPA CoP contains the following in paragraph 21:

''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.''

ParkingEye fail to tell drivers that the ANPR data will be compared to any VRNs input into the P&D machine and will then be used to issue 'parking charges' for any case where there is a VRN omission or error. If I had known this vital fact, the driver would have thought twice before inputting the VRN in error. As the driver did NOT know this, the driver cannot be deemed bound by the terms.

The ticket machines should be linked to the cameras and only allow correct details, or offer the nearest match and ask if it is the correct VRM before accepting the money

Some interesting points arise from use of Automated Number Plate Recognition (ANPR) - in particular this from the ICO CoP:

“When storing the information and cross referencing it with other databases to identify individuals, you will need to ensure that these databases are kept up-to-date and accurate and are of sufficient quality to prevent mismatches”

Therefore if the camera takes personal data (registration) and stores it to then cross reference with the registrations inputted, I would argue that:

an accurate system would be able to marry up the 2 numbers that were inputted to require more than 2 numbers was, in any event, to process more personal data than reasonably required to check for payment

As there were very few cars in this small car park at the same time as the parking event I find it highly unlikely that there were multiple vehicles with the same 2 last numbers.

It is also interesting that in a previous case where ParkingEye were asked for a list of all cars that had entered a car park between a certain time on a certain day the list of vehicles that they provided as evidence contained only the last 3 letters of all registrations.

jessAM

5. THE ANPR SYSTEM IS UNRELIABLE AND NEITHER SYNCHRONISED NOR ACCURATE

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 have seen no evidence that they have complied with this section of the code (nor 21.1, 21.2 or 21.4) in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.

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 the 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.

6. No genuine pre-estimate of loss

The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator.

ParkingEye must therefore be required to explain their charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so ParkingEye have no cause of action to pursue this charge.

I specified in my original appeal that I would like to see a breakdown of the costs incurred by ParkingEye as a result of the alleged breach. ParkingEye have failed to provide this information, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.

I put it to ParkingEye to prove that a loss has occurred at the time that this charge was levied and ParkingEye 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, such that the charge is a genuine pre-estimate of loss.

If ParkingEye claim that the charge is 'commercially justified' and cite 'ParkingEye v Beavis & Wardley', I put forth that such a claim is irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle 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.''

My case is the same and ParkingEye’s contract with The Sun public house Chesterfield is nothing like ParkingEye's contract in the Beavis case anyway, where ParkingEye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, ParkingEye are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #2.

7. The charge is a penalty, breaches the CRA & is not saved by ParkingEye v Beavis

This situation is an 'ordinary' contract, a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a faulty set of machines and can be very easily distinguished from the case of ParkingEye Ltd v Beavis. Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held: ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148:

But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.

''And at the Supreme Court it was held at 14. ''...where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;͛''

At 22, the Supreme Court explored Lord Dunedin͛s speech in Dunlop and separated complex cases (Beavis) from ordinary contracts with a transaction and tariff: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination.

At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedins four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge out of all proportion to the tariff - which was paid in any case for the time actually parked and the driver left before expiry of the ticket - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position: - Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

8. No Contract was entered into between the ParkingEye and the Driver or Registered keeper

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

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

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


I therefore request that POPLA uphold my appeal and cancel this PCN.

Umkomaas

Appeal point 3, 5 and 6 (especially) are dead in the water. POPLA won't adjudicate on 3 or 5, but will do on 6, where they will use their template wording to reject your appeal point and award this to PE. Don't give them the opportunity.

Coupon-mad

I was going to include a point on Consumer Contract Regulations 2013 and private parking but I didn't quite understand it enough to talk about it!

Leave it out, as it doesn't win at POPLA.

Do the POPLA appeal in your husband's name as driver of course (just checking to stop you accidentally putting YOUR name in!) and PLEASE heed my advice not to put this in until the end of the weekend, as you must give PE a chance to start to chew over the Rectification Notice first.

I assume you emailed that yesterday, so you must leave a few days gap.

POPLA codes last 32 days, and I don't care what the POPLA website says about 28 days (not true in practice). We know what we are doing!

Remove #6 which is ancient and a no-hoper, since the Beavis case.

Replace it with a point that says:

#6. The contravention stated did not occur, and the PCN was not properly given and breaches my right as the driver (and the registered keeper's same right) to 'inaccurate data rectification', under the GDPR

ParkingEye issued a PCN that alleged: 'Not purchasing the appropriate parking time or by remaining at the car park for longer than permitted'. But the facts are:

I did not 'fail to purchase' the appropriate parking time.

I did not 'remain at the car park for longer than permitted'.

Neither of those allegations in fact occurred, so this PCN was not properly given.

Parking Eye admit this in their reply to appeal and have tried to shift the allegation to the completely different 'inputting only a partial VRN'. One hurdle they now face is that ParkingEye have filed to serve any PCN (either to the keeper or me as the driver) that describes that contravention. So the only PCN in play, does not match the contravention they now allege.

They have suggested in the rejection letter, that paying £20 would be a 'goodwill gesture' on their part, even though under the GDPR, where a firm recognises 'inaccurate' data they are obliged under Articles 18 and 19, to interrogate their other data streams (such as the ANPR images) and 'rectify' it.

I have written to the operator's Data Protection Officer (and so has the registered keeper, since the VRN data from the DVLA identifies them as a data subject) requiring ParkingEye to 'rectify' the inaccurate data of the partial VRN emanating from the keypad system. Given that they have conclusive proof, in the form of the ANPR images and the DVLA look up, that the full VRN is in fact xxxx xxx the operator is required under the GDPR to use this information to 'right the wrong'.

They should have done so anyway, and never issued any PCN.

ParkingEye trumpet about having a system including human intervention and '19 checks' before issuing any PCN. The informed online opinion of the growing population of regular private PCN-fighters, is that their claim to have had a person carry out 19 checks for the millions of PCNs they issue per annum, is surely hogwash, and the evidence bears out that PCNs are issued purely based on an 'automated decision' alone, contrary to data protection law and contrary to the ICO ANPR/surveillance camera Code of Practice.

This has everything to to with POPLA, if this operator's automated PCN system spits out a PCN with no-one checking the data properly against the ANPR images, no-one bothering to spot the partial match and rectify it behind the scenes, as any professional 'data controller' trader must do. Since the PCN is plain wrong in saying that the driver ''did not purchase the appropriate parking time or remained at the car park for longer than permitted'' then the PCN was not properly given and without a PCN, the charge must be cancelled.

So, as driver, maybe I entered a partial VRN? This makes no difference and does not make the PCN valid, because the operator's own data error is worse, and automatically generated a PCN that bears no relation to the allegation now in front of POPLA, the heinous crime of 'inputting a partial VRN'.

Even if the sign says that drivers must enter a full VRN, and POPLA is inclined to start to consider that potentially that term may have been breached, the fact remains that the PCN fails to accurately describe (at all) those circumstances that gave rise to the parking charge.

In any case, the operator is not entitled to charge (not £100, nor £20 - nothing) for data rectification that was within their control at the outset and should have been rectified within their 19 checks. Further, they are not allowed to process my data whilst handling my rectification notice, so they will either have to reply extremely quickly if refusing to rectify it (in which case the operator is warned that I will report that refusal to the ICO) or they will have to offer 'no contest' at POPLA because they are currently barred from processing my data at all, and that of the registered keeper.

jessAM

Thank you, that's great.

Yes, we put the sent the GDPR email on Wednesday evening and so far only have the standard automatic email response. I will certainly wait until Monday/Tuesday to submit my POPLA appeal, am I right that I should change the links and use photos instead?

I've removed points 3, 5 and 6 and replaced it with the point above.

I just want to confirm regarding the planning permission. I have contacted Derby City Council who have confirmed there is only one planning permission on record since 1974 for the piece of land in question. The only planning permission given is in 1991 referring to changing the "USE OF LAND AS CAR PARK FOR RANGEMOOR HOTEL | LAND REAR OF, 77 & 79 MACKLIN STREET" The Hotel was closed early 2017 after going into receivership. It was then taken over by GCP to use as car park. However I can't see anything about GCP and ParkingEye being the same company or working together or having any planning permission other than I mentioned above. The only information I can find about it is from a newspaper article stating "GCP negotiated a sale of the property from the receivers to continue the operation of the car park and redevelop the property for residential use".

As always many thanks for your help.