Yet another ParkingEye fine thread

Purpleee

Hello all, so yesterday my mum informed me that they got a letter

Dated 21/08/19 (So dated before I sent my email to PE)

We write regarding the above referenced parking charge, which concerned...

Following receipt of your recent correspondence and your request for alternative dispute resolution, you were provided with 28 days to lodge an appeal with POPLA. This has now passed and you have not appealed to POPLA or paid the parking charge in full. We note that the full amount of the parking charge remains outstanding and that we have been unable to reach an agreement in respect of the same via the reply form.

We now require full payment of the outstanding sum of £100.00 within the next 14 days or further action will be taken. Should court proceedings be issued, further costs will be incurred. These will include but are not limited to, the court claim issue fee and the solicitors costs referred to within the LBCCC.

In light of the previous posts, how should I proceed? Thank you

MistyZ

Purpleee wrote: »

Hello all, so yesterday my mum informed me that they got a letter

Dated 21/08/19 (So dated before I sent my email to PE)

Hi there. I've only just read through this thread. What's happening with you and letters?

Twice you've found / received an important piece of information late .... is this something you can sort out pronto? If you're going to fight this you'll need to note down and keep every bit of correspondence. And you most definitely do not want to get court papers late!

Purpleee

MistyZ wrote: »

Hi there. I've only just read through this thread. What's happening with you and letters?

Twice you've found / received an important piece of information late .... is this something you can sort out pronto? If you're going to fight this you'll need to note down and keep every bit of correspondence. And you most definitely do not want to get court papers late!

I have a work address, which I am at most of the time, and a home address which my letters are sent to and I don't visit often because I work a lot. Excuses but that's my reality

MistyZ

Purpleee wrote: »

I have a work address, which I am at most of the time, and a home address which my letters are sent to and I don't visit often because I work a lot. Excuses but that's my reality

I'm not having a dig, just concerned that delays in getting hold of post could prove a real stumbling block, they would seem to have made things a fair bit more complicated already. Is there anyone you trust to open letters for you?

Purpleee

Dear all,

So today, 13/09/19 I've gotten email correspondence this time (after I twice demanded for it)

We are writing to advise you that we have received your reply to our Letter Before Claim and that we have noted your request for Alternative Dispute Resolution. We have now provided you with a POPLA code to enable you to lodge an independent appeal. For
further information, please see below and enclosed.
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 reinstated 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.

Will add the appeal below once I've added point 1 regarding signage in about 10 minutes. Many thanks

Coupon-mad

We have now provided you with a POPLA code to enable you to lodge an independent appeal.

ParkingEye are the only PPC with enough nous to do this, to be fair.

Purpleee

Here goes. Please let me know any adjustments that are to be made, many thanks again

Dear POPLA,
PCN Number: XXXXXXX
POPLA Verification Code: xxx

I write to you as the registered keeper of the vehicle xxxx, I wish to appeal the £100 Parking Charge Notice (PCN) issued by ParkingEye Ltd.

As the keeper of the vehicle, I wish to put forward to you that a ticket was purchased for the hour the car was parked in the Mecca Bingo Car Park. On xxxx, the driver paid for 2 hours parking via an app, which usually notifies the driver when parking is about the run out. It failed to do so on this occasion and as a result, the driver inadvertently overstayed by 32 minutes. The driver’s intentions were not dishonourable as they had paid for parking.

Therefore, I submit the reasons below to show that I am not liable for the parking charge:

1. The signs are not prominent, clear or legible
2. Keeper Liability Requirements and the Protection of Freedom Act
3. No evidence of Landowner Authority
4. ANPR Accuracy and Compliance
5. No Contract was entered into between the Parking Eye and the Driver or Registered keeper


1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

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 ‘p’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 is not clear and is in small font which makes it impossible to read as you are going into the car park, especially as the signage is on the edge of a mini roundabout. The driver was able to park the car without driving pass any of the signs and there is one sign placed at the roundabout as you leave but this does not enable the driver the chance to read this unless they physically get out of the car. The signage is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

The BPA Code of Practice states:

"18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about
the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car
park is managed and that there are terms and conditions they must be aware of."

Furthermore, the postal parking charge notice received, states that 'the signage displayed at the entrance to and through the car park, states that this car park is private land managed by ParkingEye.

There were no informational signs at the entrance of the car park, informing drivers of the required information. Instead there was a plain 'P' sign and an arrow, giving no indication of it being a private, paid car park. This makes the parking charge notice factually incorrect, as well as going against BPA guidelines.

After seeking legal advice, I believe ParkingEye to be in breach of the BPA Code of Practice by not providing the required information at the car park entrance.

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:

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.

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 not sufficiently visible. ParkingEye have no signage with full terms which could be read at eye level, for a driver in moving traffic to read on arrival. The only signs are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. 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.

Parking Eye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park but this is not clear. 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, as the sign is on the entrance to the roundabout the signs are not seen by the driver at all if you turn left into the car park and park where the driver did. 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.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount that Parking Eye is now demanding, rather than simply the nominal amount presumably due in a machine on site.


These are a failure by ParkingEye plus to ensure that their signs were to be seen accordingly. The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. The signs must be visible by all drivers; these requirements were not met and I demand strict proof that these signs are visible by all drivers and there is clear signage of the section of the Car Park belonging to Parking Eye.

The BPA Code of Practice, Appendix B, under Contrast and illumination:

Furthermore, the landmark case of ParkingEye v Beavis [2015] UKSC 67 establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges. ParkingEye did not provide me with evidence that such signs, if present, were available throughout the car park and visible, from the area where the car was parked at the time of the event.

Breach of the BPA Code of practice, paragraph 18.2. Terms & Conditions / Entrance signs.

The BPA Code of Practice, paragraph 18.2 states:

"18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about
the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car
park is managed and that there are terms and conditions they must be aware of."

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.''


Letter Height Visibility is discussed here:

''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.''

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.

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. Please also note that the alleged breach occurred at 23:00 at night, therefore Parking Eye must take into consideration the night-time conditions.




2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

3. 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 a 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

4. ANPR Accuracy and Compliance

I require ParkingEye Ltd to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that ParkingEye Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as 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 Ltd in this case to show evidence to rebut this point: 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 this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
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. Full details of the items you should check are listed in the Operators Handbook.
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.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
a; be registered with the Information Commissioner
b; keep to the Data Protection Act
c; follow the DVLA requirements concerning the data
d; follow the guidelines from the Information Commissioner's Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. 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 Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), 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 strict proof to the contrary.

5. No Contract was entered into between the Parking Eye 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 also put them to provide strict proof of landowner authority, compliant signage, POFA compliance, BPA COP compliance and up to date APNR.

Many Thanks

Purpleee

Hello all,

Would I be right to assume the above appeal is ok to submit? Many thanks!

Purpleee

Also, in Grounds of Appeal, the options are:
1. My vehicle was stolen (No)
2. I was not improperly parked
-The vehicle was not parked where it stated it was on the parking notice.
-You were still within the time you paid for.
-You did not overstay the free parking allowed in the car park.
-You paid the correct amount for parking
-Your car parking ticket was clearly displayed
-The terms and conditions of the car park were not properly signed (Possibly?)
-You were parked in an area where you were free to park
-You complied with the terms and conditions on the signage
3. The amount requested on the parking charge notice is not correct. (No)
4. I was not the driver or the registered keeper of the vehicle at the time of the alleged improper parking. (No)
5. Extreme circumstances prevented me from parking correctly. (Don't think so?)
6. Other
- You will need to provide reasons why you are appealing your parking charge. (Possibly?)


It says I can select more than one, but I wanted to ask here first to avoid selecting the wrong one! Many thanks

KeithP

Choose other.

It does say in post #3 of the NEWBIES thread:

These then get saved as PDFs and uploaded to POPLA under OTHER (ONLY) - do not think you only have 2000 characters in some box on the POPLA wepage!