POPLA appeal Letter - Parking Eye

HenryCountry

Hi all, I have made my first appeal thought their website and 'surprisingly' it have been rejected. I have therefore drafted my POPLA appeal letter below. It would be greatly appreciated if someone can provide some feedback or comment on it before I send it. Thank you!


Re: ParkingEye PCN, reference code xxxxxxxxxx
POPLA Code:

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:

1. Keeper Liability Requirements and the Protection of Freedom Act.
2. Parking Eye have no Standing or Authority to pursue charges nor form parking contracts
3. Confusing Unclear ambiguous inadequate signage so no valid contract formed.
4. The amount charged is a disguised penalty out of all proportion to any legitimate interest and cannot be commercially justified 
5. The ANPR system is unreliable

1. Keeper Liability Requirements and the Protection of Freedom Act.

Keeper Liability Requirements and the Protection of Freedom Act. Failed to invoke keeper liability as the notice to keeper omits wording required by Paragraph 9 of Schedule 4 of POFA 2012. They have not included on the notice to keeper about how much has been paid and how much remains unpaid.
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full
(c) describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of the drivers) and the other facts that made them payable.
(c) specify the total amount of the parking charges that are unpaid, as at a time which is-
(i) specified in the notice: and
(ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper(see sub-paragraph (4)

I refer to the Parking Charge Notice issued to me by Parking Eye as a Notice to keeper. I confirm that I am its keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 and I formally challenge the validity of this Parking Charge Notice. The strict requirements of Schedule 4 of POFA have to be followed in order for a parking operator to be able to invoke keeper liability for a Parking Charge.

Conditions that must be met for purposes of paragraph 4
(c) inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is—
(i) specified in the notice; and
(ii) no later than the time specified under paragraph (f);
(d) inform the driver of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(e) identify the creditor and specify how and to whom payment may be made;
(f) specify the time when the notice is given and the date.
(3) The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices each specifying different parts of a single period of parking).
(4) The notice must be given—
(a) before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and
(b) while the vehicle is stationary, by affixing it to the vehicle or by handing it to a person appearing to be in charge
(9) (e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(9) (5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

2. Parking Eye have no Standing or Authority to pursue charges nor form parking contracts

Parking Eye have no Standing or Authority to form parking contracts or enforce them in court in their own name Parking Eye have no authority to issue parking contracts nor to pursue to court as required in the BPA code of practice. The Parking Eye Contract should be with the Landowner and not a company leasing the land. Parking Eye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

7 Written authorisations of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement d who has the responsibility for putting up and maintaining signs
e) the definition of the services provided by each party to the agreement
7.4 Our compliance team are responsible for making sure that you follow the Code. If the team give you reasonable notice, you must allow our appointed manager to inspect the landowner’s written authorisation.

3. Confusing Unclear ambiguous inadequate signage so no valid contract formed.

The Car Park had confusing, unclear, ambiguous, inadequate signage and insufficient information so is not compliant with the BPA Standards and creating unreasonable and unfair terms so no contract is formed with Parking Eye and therefore no agreement to pay £100.

I believe the signs that Parking Eye are relying on at Abersoch Golf Club-Beach were confusing and misleading, the small print is too small for anyone to see read. The signs did not properly and clearly warn and inform the terms of this car park correctly and as such failed to comply with the British Parking Association Code of Practice Part 18 appendix B. The signs are also camouflaged by the greenery at the Parking Site and not the normal Parking Eye signage which is black writing on yellow or white, therefore the signage is not easily seen, and as such is against the BPA Code of Practice requiring signage to be ample and visible. The signage is quite invisible due to the greenery and I am sending evidence to show this. The signs are also so high that terms would only be legible if a driver got out of the car and climbed a stepladder to try to read them. In any photos supplied by parking eye in evidence I require them to state the height of each sign. Unreadable signage breaches Appendix B of 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.

18) Signs
18.1) A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.
18.3) Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.

The signage states a table of tariffs. The entrance road from which the car park is accessed is 15mph approach speed in accordance with the BPA Code of Practice Appendix B the lack of clear indication of charges being applicable to a person driving past the sign is insufficient to form any contract. There is no notification on the entrance sign that says there is any “free period of parking” during which there is time allowed to park read the terms and conditions and decide whether to enter into any contract or not, which is a requirement under contract law. The other signs are on high poles from the pay machine. that there is paid parking for up to 24 hours. It says that parking can be up to one hour at £1.00 charge then up to three hours parking at £4.00 charge then up to 8 hours parking at £5.00 charge then up to 12 hours parking at £10.00 charge then up to 24 hours parking at £20.00, but nowhere do the signs indicate that the extra time could be purchased at any time so therefore a person could summarise that the purchase has to take place on arrival not when someone returns to their vehicle after the parking hours purchased has been reached. The ticket issued does not detail the expiry time or that extra time can be purchased on return to the vehicle. Therefore the signage is unclear and inadequate as it does not explain about the purchase of further time and when this is allowed. For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not. I also believe that a person can pay on entry, when you get back, or top up if there is an overstay but this is not listed anywhere. Also, charges do not apply for less than 15 minutes which is also not listed anywhere!

4. The amount charged is a disguised penalty out of all proportion to any legitimate interest and cannot be commercially justified 

The amount charged is a disguised penalty and not commercially justified. This was no agreed contract and the sum is unfair, unreasonable and unrecoverable. The charge from Parking Eye as a third-party business agent is an unfair unenforceable penalty and differs from the 'Beavis v Parking Eye' judgement as this is a paid car park. The exit photo is not evidence of 'parking time' at all. This charge is for an alleged breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified, that Parking Eye who are the non-land-owning third party can claim a sum in excess of any damages.

This is different to the Beavis case, as it is a pay and display car park and therefore there is no compelling commercial interest in maintaining turnover. For the Beavis case, it is argued that this charge has been artificially inflated and Parking Eye have failed to disengage the 'penalty rule' by virtue of a want of good faith and also a failure in their duty to deal fairly with consumers and a failure to follow the requirements of their industry’s Code of Practice. £100 is hugely disproportionate to any alleged unpaid tariff. Parking Eye cannot justify how an alleged over-stay in a paid 24-hour car park incurred a loss of £100. They have failed to supply sufficient evidence to justify this cost because of the plain fact that it is unjustifiable; it is an arbitrary figure that they have invented. And there is no commercial justification as the landholder has no incentive to maintain turnover of spaces at that location as a motorist can stay longer in the car park if required and in fact can stay all day and night if they wish by paying £20.00. As such it is an unenforceable penalty. The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area.

For this charge to be justified, a full breakdown of the costs Parking Eye has lost as a result of the car being parked at the car park, is required and should then add up to £100. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of costs such as 'staff time spent on appeals' and other tax-deductible business costs like administration, accounting & equipment. The staff hired are already paid to do their jobs so there is no “loss” for their normal activity as apparently only 1% of cases follow the POPLA route. Therefore, these costs are part of the usual operational costs irrespective of any car being parked at that car park.

Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis case was based on the use of that particular car park which was free and the charge should also be disregarded as the judgment simply reaffirms that the decision was justified to ensure motorists left within 2 hours for the good of all other drivers and the facility. As previously mentioned in this situation there is no such justification. As this was a Paying car park, the Notice to Keeper has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed. On the Notice To Keeper it only states that the car was in the car park for a certain amount of time and that the contravention was an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able – and indeed are required under the POFA – to state on the Notice to Keeper the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions: '
'9(2) The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c) describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'

This NTK was not compliant due to the omissions of statutory wording. As such, it is an unenforceable penalty. Parking Eye have not told me what was paid and what is still outstanding which is a breach of Schedule 4 of POFA 2012. So the notice to keeper is not compliant.

5) The ANPR system is unreliable

I refer to Section 20, Paragraph 5 (S20P5) of the British Parking Association Code of Practice:
“When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.”

Parking Eye is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require Parking Eye to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. The signs also fail to inform that actual entry where the cameras are start the period of so called “parking” and only exiting past the cameras completes that period. The total time spent parked in a bay is different. As such the contractual parking time inferred is insufficient to form a proper contract.

The ANPR system is unreliable and neither synchronised nor accurate Parking Eye’s evidence shows no parking time, merely photos of a car driving in and out which does not discount the possibility of a double visit that evening. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay machine clock nor even to relate to the same parking event.

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 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 with records and photos.
21.1) You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 )Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.
21.3 )You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.
Time in the Car Park is not a period of Parking. The motorist must be given time to park and read the signs and find a ticket machine and have time to leave the site at the end of parking, and also search for a member of the Parking Team to enquire about anything that is confusing about the sign, for example whether further parking can be paid for on return to the vehicle. It is confusing about when to pay this. The ticket is also confusing as when you take a ticket out of the machine it is no indication on when you entered the car park and when you should get back to your vehicle, as the only information on the ticket is the time you put your registration number into the machine. It is therefore not indicative of the time entering the car park and cannot be used as accurate reference as does not state when the free period ends. The signs say to take a ticket after putting in your registration but it does accept any registration put in so there is no room for error, nowhere does it explain what to then do with the ticket, nor what to do after this? So, you have the ticket with no further reminders that you only have a certain amount of parking and may purchase further hours (and if that is the case when you can purchase it) or if a person is late back may get fined £100. No reminder of charges and penalties, very misleading and confusing once again. The small print on the signs also take ages to read and a person may even need to then go back to collect their glasses from their car as the print is so tiny. This also requires good lighting and are too high for shorter people to read. The British Parking Association Code of Practice states the motorist must be given time to read the signs and time to leave the site at end of parking.

The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers are “…parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.” (18.5)

On the basis of all the points I have raised in my POPLA appeal the parking charge notice fails to meet standards set in the British Parking Association Code of Practice. I reject the charge and would appreciate that you review all my points and allow the appeal.

On the website of the Golf Club it does say one can pay your stay at the beginning or at the end…why does it not say this on the signs? The website also state that the system will allow a short period of time before a charge is made… neither of this is on the signage.

Evidence submitted

MistyZ

Have not read every word but one thing that struck me is the sentence is '.... I am sending evidence to show this'. The comments on signage appear fairly compelling and, ideally, will be backed by photos embedded in the appeal. Is that how you're planning to provide this evidence?

I got a bit lost in section 4, but if that is basically about 'no genuine pre-estimate of loss' then there's no point including it since Beavis, in fact it could jeopardise the chances of success. I also have doubts about the usefulness of section 5 and it does seem to meander somewhat.

What was the alleged infraction?

The_Deep

I agree, their signage is ridiculous, read this

https://forums.moneysavingexpert.com/discussion/5972164

Nine times out of ten these tickets are scams so consider complaining to your MP.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Umkomaas

We know nothing of the background to this. Like at what kind of establishment the parking event took place.

Have you complained to the landowner?

You challenge PE's ability to pass liability to the keeper under the Protection of Freedoms Act 2012 (Schedule 4) . We haven't seen your initial appeal to PE, so we don't know if you identified the driver in it - like 'I parked', 'I drove in to the car park', 'I didn't see the signs' ......

If you did identify the driver, then your PoFA appeal paras are redundant. In any case, PE NtKs are among the 'best' in being PoFA compliant, unless that is you've got a PE 'Golden Ticket'.

Can you give us the date of the parking event?

Date of Issue shown on the NtK?

Does the reverse page of your NtK contain a paragraph about the Protection of Freedoms Act 2012, which commences 'You are notified under paragraph 9(2)(b) of Schedule 4 ..... '. And a further paragraph which commences 'You are warned that if, after 29 days from the date given ....'?

Your appeal point 5 (ANPR) is of little value. POPLA have never considered the point, leave it out.

Coupon-mad

As you have used the POFA as point #1, are you SURE you have a Golden Ticket (non-POFA)?

HenryCountry

Hi all, thanks for your response. I will reply all below.

In summary, we were at the beach carpark for beach activity. The carpark belongs to Golf club. We paid for 8 hours when we arrive. We stayed 8 hours and 50 mins and we did not realise that until I receive the PCN arrived at my door.
PCN was issued 5 days later. Pictures attached below. I can’t share the link to my pictures as I am new. Can someone please share it here? The link to those pictures are
h.ttps://imgur.com/a/4yf0io6

@MistyZ,

I will remove regarding the evidence; you are correct that they have all the photos and I will keep the photos of their signage and will see what they produce.
Yes, section 4 is about ‘no genuine pre-estimate of loss’ however I have read that some do not recommend to use that word as it is not a ‘legal’ challenge as such. I mentioned Beavis case because somewhere I have read that Parking Eye have used this case to fight against people who appeal using this term. (Sorry, I don’t remember where I have read this as I have done so much research/reading on drafting this)

@The Deep,

This are the signage I manage to ask a friend to take photos of and a few from the internet. Please see the link as I can’t share.

Should I CC my MP in my appeal of just send her an email complaining about this?

@Umkomaas,

I did not complain to the landowner because it was a beach side carpark which own by the Gold Club. I was there for the beach and I am not the member of the golf club so I doubt they are willing to do anything. There are also other people who have message the manager of the golf club complaint about the ‘invisible’ signage and the manager appear to respond that it is configured accordingly.

I did not name the driver and used the template in blue text from the pinned newbie thread.
Date of event 13 July 2019,
Date issued: 18 July 2019

Yes, the reverse page has the following paragraph you asked. I noticed that you referred it to NtK, but on the letter I received it state PCN. I have attached the pictures in here for reference.
I have removed paragraph 5.

@coupon-mad,
After reading all the comments and getting more understand about non-POFA/ POFA, mine is not a golden ticket. ☹

Could you recommend to be the first paragraph? I would think it’s regarding the signage as nowhere seems to mentioned that we can pay END of the parking.

Thank you everyone for responding and I understand why people pay it as it is stressful not knowing if the appeal will be a success or not.

Redx

The first PCN is the NTK , even if it does not say the words notice to keeper

If it has the pofa warning and arrived within 14 days , then hiding as keeper behind pofa is a waste of time and no POFA paragraphs will help

The driver or an occupant of the vehicle could have and should have paid for the extra hour, foolish not to do so because 50 minutes is way beyond the usual Grace periods

Genuine pre estimate of loss died with the Beavis case, so do not use it or refer to it

The best paragraphs would be

No landowner authority
Poor and inadequate signage
Faulty machines stopping a second payment ???
BPA Cop failures

PE usually have all their bases covered and I cannot see a win here, so have no idea why it is being appealed ? Seems to me that the keeper should have held their hands up and paid the discounted PCN charge within 14 days

So when the PCN arrived in the post , what reason did the keeper decide was good enough for an appeal ? There must have been a valid reason why they refused to pay ?

KeithP

I will remove regarding the evidence; you are correct that they have all the photos and I will keep the photos of their signage and will see what they produce.

Are you saying here that you will not be supplying any pictures of signs with your PoPLA appeal?

If so, that might not be wise. If you have pictures which show failings in their signage, you should show them to PoPLA and point out how inadequate ParkingEye's signs are.

Redx

I agree , because you only get one chance to embed pictures , which is within the appeal as a PDF, too late once it's been submitted

HenryCountry

Hi RedX,

We did not make top up payment as we did not realised that we over stayed. My basics of not willing to pay was how is £60 justifiable for 50 mins over stay? Another reason I did not pay is because most of the thread i read in the forum here say dont pay but appeal.

Plus at that time, I did not know that I can 'top up' nor I have the option of paying at the end of the parking.

Does this meant I am on a losing battle ground?

Thanks.

HenryCountry

Thanks, KeithP .

I am not sure what should be my next move. To continue appeal to POPLA or to pay up as RedX mentioned I do not seems to have ground to appeal.