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  • FIRST POST
    • wishmun
    • By wishmun 24th Jul 18, 1:54 PM
    • 36Posts
    • 8Thanks
    wishmun
    Advice needed
    • #1
    • 24th Jul 18, 1:54 PM
    Advice needed 24th Jul 18 at 1:54 PM
    Hello,

    Its my first post here :-D And we all know why it is.

    The driver of my vehicle parked on the private ground on (in)famous Aire Street, Leeds. I received PCN through the letter box few days after the event stating that there is a payment of £100 to be made. At the back the usual POFA 2012.
    Driver of my vehicle really wanted to pay by cash but the machine was saying NOT IN SERVICE. Driver was dumb enough to forget his phone and because it was Sunday he assumed its FREE... car was clocked for half an hour-ish. First appeal didn't go well. Template from parkingcowboys.co.uk/appeal-letter/ was used asking for a lot of information - none of the questions has been answered - they just responded with generic unsuccessful reply. Now there is around 2 weeks to appeal to POPLA.
    Within (only just) 28days from alleged event someone has gone to the same carpark and bought a ticket (which I now have) for the full (Sunday) day on my car registration number...
    Now how can this be approached? Out of interest I was reading the terms - I cant see the words there that one need to pay at the same day as one parked... so actually the parking was paid..

    Best regards,

    Mickey Mouse
Page 1
    • Redx
    • By Redx 24th Jul 18, 2:03 PM
    • 19,586 Posts
    • 24,894 Thanks
    Redx
    • #2
    • 24th Jul 18, 2:03 PM
    • #2
    • 24th Jul 18, 2:03 PM
    you need to use the search word AIRE in the drop down forum search box, or something similar like PARKING EYE AIRE ST , and crib from the popla appeals that are found in there , using as many bullet points as possible, especially the no landowner authority , signage , not the same as beavis , frustration of contract due to the machines being out of order , etc
    post the proposed draft on here for critique

    buying a ticket on a different day seems irrelevant to me
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • nosferatu1001
    • By nosferatu1001 24th Jul 18, 2:22 PM
    • 3,659 Posts
    • 4,494 Thanks
    nosferatu1001
    • #3
    • 24th Jul 18, 2:22 PM
    • #3
    • 24th Jul 18, 2:22 PM
    Frustration of Contract
    Its their job to maintain machines to take payment, if they decide not to have systems in place o ensure failures are detected and corected in time, its not your issue.
    • wishmun
    • By wishmun 24th Jul 18, 2:37 PM
    • 36 Posts
    • 8 Thanks
    wishmun
    • #4
    • 24th Jul 18, 2:37 PM
    • #4
    • 24th Jul 18, 2:37 PM
    hmm buying a ticket was just covering all bases - adding an option (in my mind) if it comes to worse case scenario.. as they dont have ANY loss - contrary they gained extra few quids :-P

    And I just read a post from Silvercloud18 with his popla assessor going bonkers... I hope he will win after all.
    • wishmun
    • By wishmun 25th Jul 18, 10:16 AM
    • 36 Posts
    • 8 Thanks
    wishmun
    • #5
    • 25th Jul 18, 10:16 AM
    First (obviously unsuccessful) appeal
    • #5
    • 25th Jul 18, 10:16 AM
    Before I found this great forum I was frantically ;-) looking for something to throw at them for them to just give up (lol) so here is the template I used:


    Name
    Address
    Date

    Without prejudice, except as to costs

    Parking Charge Notice - Notice to Keeper [Give its ref number]

    This letter is a formal challenge to the issue of your Parking Charge Notice - Notice to Keeper as set out in the current BPA Ltd AOS Code of Practice B.22

    On (date) I was the registered keeper of a (make and model of vehicle) registration number (reg number).

    Before I decide how to deal with your Parking Charge Notice - Notice to Keeper, I should be grateful if you would first answer all the questions and deal with all the issues I have set out below. Once you have done so, I will be able to make an informed decision on how I deal with the matter.

    I should be grateful for specific answers to all questions raised. In this respect I remind you of the obligations set out in the current Practice Direction on Pre-Action Conduct.

    I dispute your claim for the reasons set out below. Please note that although I dispute the whole basis of the parking charge, my main concern is its disproportionate and punitive level.

    1. Your parking charge amount claim.

    Please explain on which of the following grounds your claim is based:

    (i) Damages for trespass
    (ii) Damages for breach of contract
    (iii) A contractual sum

    2. Your loss.

    If it is your case that that a trespass was committed or that a contract was breached such that your claim is one for damages; please give me a full breakdown of the actual losses which evidences that this parking charge is a true reflection of the damages caused solely by the alleged parking contravention.


    3. Your status – the creditor.

    Your Parking Charge Notice - Notice to Keeper simply mentions [Insert name of parking company if that is who is named on the PCN/NTK]. Please tell me who is the actual creditor making this £[insert amount] parking charge demand. I need to know exactly who is making the claim and in what capacity.

    4. Ownership of premises.

    Please tell me who owns the car park as I wish to send them a copy of this letter.

    5. Contractual Authority (as required by BPA Ltd AOS CoP B.7)

    Please provide me with a copy of the contract between your company and the landowner/landholder that provides the necessary contractual written authority for the issue and enforcement of your Parking Charge Notice - Notice to Keeper.

    6. Signage.

    If it is your case that a contract has been breached or that a contractual sum is now due, please send me photographs of the signs that you display and upon which you seek to evidence that a lawful and legally enforceable contract was been entered into. Please ensure that the photographs show the terms and conditions in a clear and legible manner. Please provide me with a diagram showing the locations and layout of those signs at the car park. Also provide evidence that the wording is in plain and intelligible language and in sufficiently large print as to be legible to a driver at the car park’s entry point.

    7. Summary

    I look forward to receiving your acknowledgement within 14 days and as there are no ‘exceptional circumstances’ your comprehensive reply within 35 days (in accordance with the BPA AOS Code of Practice B.22.8). I will then be able to make an informed decision as to how I deal with your Parking Charge Notice – Notice to Keeper.
    If you reject this challenge or fail to address the issues that have been raised then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer the matter for their decision.
    If you fail to follow any of the procedures outlined in the BPA AOS Code of Practice or your legal requirements under the Protection of Freedoms Act, or the requirements of the Practice Direction on Pre-Action Conduct then I will make a formal complaint to the DVLA Data Sharing Policy Group, D16.
    Please Note: Unless you have specifically requested it and received my express permission, you do not have my authority to disclose or refer this letter or any other communication from me to any other person or organisation.

    Yours
    • wishmun
    • By wishmun 25th Jul 18, 10:20 AM
    • 36 Posts
    • 8 Thanks
    wishmun
    • #6
    • 25th Jul 18, 10:20 AM
    • #6
    • 25th Jul 18, 10:20 AM
    now I will draft POPLA. Brace yourself... btw today is the last day of paying £60.. but I would rather burn it than give it to them!
    • Fruitcake
    • By Fruitcake 25th Jul 18, 11:07 AM
    • 37,556 Posts
    • 84,487 Thanks
    Fruitcake
    • #7
    • 25th Jul 18, 11:07 AM
    • #7
    • 25th Jul 18, 11:07 AM
    now I will draft POPLA. Brace yourself... btw today is the last day of paying £60.. but I would rather burn it than give it to them!
    Originally posted by wishmun
    Forget the £60 bribe for idiots.

    Follow the guidance here to get the 100% MSE discount.


    Your initial appeal was far too long winded and included points that won't win. Never mind, you didn't reveal the driver's identity, and any initial appeal would have been rejected no matter what you put in it.

    Use ALL the available template PoPLA appeal point from post 3 of the NEWBIES. Get your own pics of the entrance and signage to embed in the very long Inadequate Signage point.


    You should be including at least,
    Not the landowner
    No standing to issue charges in their own name.
    Not the person liable for the charge.
    Non PoFA compliant NTK (if relevant)
    Grace periods (if applicable.)
    Inadequate signage.

    Post you draft here for checking before you submit it.

    Don't forget to complain to your MP about this unregulated scam.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Silvercloud18
    • By Silvercloud18 25th Jul 18, 11:47 PM
    • 102 Posts
    • 66 Thanks
    Silvercloud18
    • #8
    • 25th Jul 18, 11:47 PM
    • #8
    • 25th Jul 18, 11:47 PM
    I have quite a lengthy, and recent, appeal on this grot hole if it is of any use to you.
    • wishmun
    • By wishmun 26th Jul 18, 3:38 PM
    • 36 Posts
    • 8 Thanks
    wishmun
    • #9
    • 26th Jul 18, 3:38 PM
    • #9
    • 26th Jul 18, 3:38 PM
    @Silvercloud18

    I read your thread and I was shocked that POPLA rejected it. How did it go? Or is it still the case?
    Last edited by wishmun; 26-07-2018 at 3:39 PM. Reason: wording
    • wishmun
    • By wishmun 2nd Aug 18, 6:05 PM
    • 36 Posts
    • 8 Thanks
    wishmun
    POPLA take.1
    Hi guys, here we have first draft for POPLA stage. I know there is not much time left (next week Tue is the deadline) but I was buried with work stuff. So here it is:

    Dear POPLA,
    PCN Number: xxx
    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.

    I would like to point out that the pay and display machine was showing NOT IN USE at that time. Driver tried to put money in several times but to no avail, other drivers were in the same situation and gave up after few tries. Driver stayed with the car and was waiting for Parking attendant - sign on the wall states that this car park is patrolled 24/7.

    I believe the driver of the event could not make a payment due to broken ticket machine and no clear instructions.

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

    1. No evidence of Landowner Authority
    2. Keeper Liability Requirements and the Protection of Freedom Act
    3. ANPR Accuracy and Compliance
    4. No Contract was entered into between the Parking Eye and the Driver or Registered keeper
    5. The car park had unclear, non-obvious, non-bpa-compliant signage leading to the driver not being aware that a parking contract was being offered.

    1. No evidence of Landowner Authority

    As ParkingEye Ltd 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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what ParkingEye is authorized to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorized 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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner 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 authorization 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

    2. Keeper Liability Requirements and the Protection of Freedom Act

    As the keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was, I submit that I am not liable to any charge. In regard to the notices I have received ParkingEye has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

    I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver). In their parking charge notice letter at no point did they actually invite me as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact I am under no legal obligation to do so). I would also like to point out that the Act stipulates that the parking company must provide me with the period the car was parked. I would strongly argue that the format of evidence provided (photographs from a number plate recognition camera showing the vehicle enter and leave the car park) is not actually valid or sufficient on its own as a form of evidence. Parking Eye should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do.


    3. 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:
    • be registered with the Information Commissioner
    • keep to the Data Protection Act
    • follow the DVLA requirements concerning the data
    • 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.


    4. No Contract was entered into between the Parking Eye and the Driver or Registered keeper

    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.


    5. The car park had unclear, non-obvious, non-bpa-compliant signage leading to the driver not being aware that a parking contract was being offered at the time (night, raining).

    As a POPLA assessor has said previously in an adjudication
    “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

    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.

    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 at all times of the day; these requirements were not met and I demand strict proof that those signs are visible at the time of darkness.

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

    Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective. Clearly none of these conditions were met (see attached photographs of non-bpa-compliant, non-obvious signage).

    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.


    Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

    Yours faithfull,

    Mickey Mouse


    ------------------------------
    SO this is it. There is an option to pay by the phone on this car park but the driver didnt have one at that time so I am worried about this really. Also the point 2. - I dont know if I can use it as I had the PCN with payment information on the first page and template I used could be with this one without it. Any thoughts?

    Regards,

    Mickey
    • Fruitcake
    • By Fruitcake 2nd Aug 18, 8:00 PM
    • 37,556 Posts
    • 84,487 Thanks
    Fruitcake
    You haven't got Frustration of contract in there.

    Your signage point is far too short. You should be using the long Inadequate signage template point from post 3 of the NEWBIES.

    You need to quote exactly how the NTK fails the POFA. You can't use para 8 AND 9 of POFA. It's one or the other.

    Not everyone has a mobile 'phone, or a smart 'phone that can be used for payment, so don't worry about that.

    Oh, never use the expression, "without prejudice" when dealing with a PPC.
    Last edited by Fruitcake; 02-08-2018 at 8:13 PM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • wishmun
    • By wishmun 3rd Aug 18, 11:37 AM
    • 36 Posts
    • 8 Thanks
    wishmun
    Edited (slightly)
    Dear POPLA,
    PCN Number: xxx
    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.

    I would like to point out that the pay and display machine was showing NOT IN USE at that time. Driver tried to put money in several times but to no avail, other drivers were in the same situation and gave up after few tries. Driver stayed with the car and was waiting for Parking attendant - sign on the wall states that this car park is patrolled 24/7.

    I believe the driver of the event could not make a payment due to broken ticket machine and no clear instructions.

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


    1. Frustration of contract
    2. No evidence of Landowner Authority
    3. Keeper Liability Requirements and the Protection of Freedom Act
    4. ANPR Accuracy and Compliance
    5. No Contract was entered into between the Parking Eye and the Driver or Registered keeper
    6. 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

    1. Frustration of contract
    The contract could not be performed as the P&D machine was in “not in use” state and didn’t accept any coins from several people. Also, how the driver can park in designated bays without actual bays painted/marked on the gravel yard, filled with pot holes and rubble.

    2. No evidence of Landowner Authority

    As ParkingEye Ltd 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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what ParkingEye is authorized to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorized 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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner 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 authorization 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. Keeper Liability Requirements and the Protection of Freedom Act

    As the keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was, I submit that I am not liable to any charge. In regard to the notices I have received ParkingEye has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

    I would like to point out that Schedule 4 paragraphs 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver). In their parking charge notice letter at no point did they actually invite me as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact I am under no legal obligation to do so). The wording of the PCN actually makes it sound like I have little choice but to give up the driver and does not actually state the choice to pay it myself. I would also like to point out that the Act stipulates that the parking company must provide me with the period the car was parked. I would strongly argue that the format of evidence provided (photographs from a number plate recognition camera showing the vehicle enter and leave the car park) is not actually valid or sufficient on its own as a form of evidence. Parking Eye should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do.


    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:
    • be registered with the Information Commissioner
    • keep to the Data Protection Act
    • follow the DVLA requirements concerning the data
    • 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

    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.

    6. The signs in this car park are not prominent, clear or legible from all parking spaces

    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:

    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:


    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:


    As further evidence that this is inadequate notice, 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.''

    ...and the same chart is reproduced here:



    ''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:



    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.


    Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

    Yours faithfully


    Mickey Mouse


    ----------------------------------
    I tried to find something on frustration of contract relevant to this case but I couldn't - so I did a short one (point 1) - I hope its sufficient

    I changed point about signs (now no. 6). although not all links are working (ebay one for sure dead) and some of the singes have actually quite big lettering.. see below

    google.
    co.
    uk/maps/
    @53.7957896,-1.5500391,3a,75y,7.56h,81.92t/data=!3m6!1e1!3m4!1s5U0rcz_H-a84yLUzhjtSjA!2e0!7i13312!8i6656

    I need to work on point 3. but I am afraid its not relevant to this case at all (I did read government legislation on those points but... its a bit complicated and I dont know how my PCN failed really... if at all. I left it for now on paragraph 9 - as I interpreted it as they didnt write on NTK about how much driver suppose to pay at that day.. is that right? 9 (2) (b)

    legislation
    .gov.
    uk/ukpga/
    2012/9/
    schedule/4/enacted

    I feel dumb... :-D

    PS. I had to delete all links from signage point and I changed mine at the bottom of the post as I am too new to post with links.. :-\
    • wishmun
    • By wishmun 6th Aug 18, 9:11 PM
    • 36 Posts
    • 8 Thanks
    wishmun
    Bump
    Any wise man out there, please come to the rescue! :-D

    Deadline for POPLA appeal is tomorrow!
    • Fruitcake
    • By Fruitcake 6th Aug 18, 9:36 PM
    • 37,556 Posts
    • 84,487 Thanks
    Fruitcake
    PoPLA codes last for 32 days, even though they say 28, so you probably have a few days still.

    There are many wise women on this forum as well you know.
    Last edited by Fruitcake; 06-08-2018 at 9:43 PM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • wishmun
    • By wishmun 6th Aug 18, 10:18 PM
    • 36 Posts
    • 8 Thanks
    wishmun
    Of course dear Fruitcake (I'm guessing wise woman here :_D) - I was throwing a bait ;-)
    • Umkomaas
    • By Umkomaas 6th Aug 18, 10:23 PM
    • 19,700 Posts
    • 31,174 Thanks
    Umkomaas
    Of course dear Fruitcake (I'm guessing wise woman here :_D) - I was throwing a bait ;-)
    Originally posted by wishmun
    Really? Read Fruitcake's signature at the foot of each of his posts!
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • wishmun
    • By wishmun 6th Aug 18, 11:19 PM
    • 36 Posts
    • 8 Thanks
    wishmun
    LOL. Listen, I got blind reading all these cases, threads, POPLAs, etc... :-D Besides, it could go either way..its 21 century :-P
    • Fruitcake
    • By Fruitcake 7th Aug 18, 9:31 AM
    • 37,556 Posts
    • 84,487 Thanks
    Fruitcake
    First of all, what was the reason given by parking lie for issuing the PCN?
    In your point 1 you mention lack of marked bays, but this is irrelevant if that was not the reason for getting the PCN.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • wishmun
    • By wishmun 7th Aug 18, 9:41 AM
    • 36 Posts
    • 8 Thanks
    wishmun
    Hello,

    Driver was within the car park for about half an hour (+), not paid for the ticket at all. Driver (and other ppl) tried to use the P&D machine but it didn't work.

    Edited: And I mentioned bays only to point out how crappy this car park is. Not really relevant to my case directly. But the scammers milking so much money could do a little bit of resurface...
    Last edited by wishmun; 07-08-2018 at 9:53 AM. Reason: adding info
    • Le_Kirk
    • By Le_Kirk 7th Aug 18, 10:15 AM
    • 3,285 Posts
    • 2,229 Thanks
    Le_Kirk
    Driver was within the car park for about half an hour (+), not paid for the ticket at all. Driver (and other ppl) tried to use the P&D machine but it didn't work.
    Originally posted by wishmun
    Frustration of contract is the normal defence here PROVIDED there was no other means of payment and/or other PDT machines in the car park.
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