Parking eye appeal rejected - assistance with popla appeal please - thx - won

[sparklers1#]

Hi, after reading many forums on many websites I had intended doing this myself but have caved and would appreciate help with my POPLA appeal. Mystery 1 your responses to others are amazing and I would really appreciate any help you can provide. My first correspondence was a letter from Parking eye dated 1 April 2015 which I have attached detailing an outstanding parking charge amount. I appealed this online to them which I failed to save (in my upset) but have copied as much as I can from memory below. They have rejected this and sent a second letter dated 17 April 2015 with a POPLA code, and the 28 days to appeal will expire on 14 May I have also attached this. I held out initially waiting for the Beavis appeal and then also considered that his incident was in a free car park where my 'alleged incident' was in a pay and display car park - Morrisons in Braintree. After reading many forums I also believe that they have breached POFA 2012 sections 8 and 9 with regards to notice to keeper i.e. I should have received the PCN within 14 days of the offence and been provided with a discounted amount to pay within a set time period - neither happened so they also breached the BPA code of practice. The driver of my vehicle (whose name I do not want to provide to them) categorically stated that there was nothing on the vehicle on the day in question, so I believe it was an ANPR charge, and the first correspondence from Parking Eye was dated 1 April 2015. Obviously they provided nothing that I asked for in my initial appeal other than the popla code.

I am appealing against your parking charge notice dated 1^st April 2015 on the following grounds. Please respond to each individual point that I state.
1.The large sum demanded amounts to a penalty and is not an accurate reflection of any loss suffered so it is not a reasonable charge for the pay and display car park. Please provide a breakdown of how your demanded charge is calculated.

2.The contractual breach can have caused no financial loss whatever to you or to the land owner but if you believe it has please set out the details clearly in your response. There were, for example, unoccupied places available for others to park so the presence of my vehicle did not prevent the parking of other cars and their making of payments.

3.I understand that, as a legal minimum, the Parking Charge Notice must include the following:
·The nature of the alleged parking breach
·The amount of any discount for prompt payment of the charge and the date it must be paid by
Neither of these were detailed on the document I received.

4.The alleged parking breach took place on 22 February 2015.The PCN was dated 1 April 2015 and was received on 7 April 2015 – according to POFA 2012, the notice to keeper must be delivered to the keeper within 14 days of the alleged incident taking place and must also include the details mentioned in paragraph 3.Therefore I also appeal on the basis that Parking Eye have breached POFA 2012 and also the Code of Practice as set out by BPA of whom they are a registered member.

If this appeal is rejected, to enable me to prepare a formal appeal to P.O.P.L.A please provide the following documentation:
A copy of your contract with the land owner which authorises you to act on their behalf in the management of this car parking area.
A copy of the contract which you allege I entered in to when the vehicle was parked.
A copy of the full terms and conditions for use of the land where the vehicle was allegedly parked wrongly.
A copy of all of the images that you have of my vehicle which I am entitled to under the Data Protection Act.
I look forward to hearing from you.
Yours faithfully,

[mystery1]

Re: Parking eye appeal rejected - assistance with popla appeal please - thx

This car park http://www.braintreeandwithamtimes.c...mplain/?ref=mr

I am off out so won't reply quickly.

M1

[sparklers1#]

Re: Parking eye appeal rejected - assistance with popla appeal please - thx

Afraid not, it is Morrisons but my vehicle was in the one in Braintree which is pay and display (the article is about the one in Witham about 6 miles away) - I never actually use this car park so will need to go and check the details but my understanding is that you put your registration in and pay to display a ticket but then get a refund when you spend a certain amount. There are no receipts etc available, I did email Morrisons complaining vehemently but had no response.

This car park http://www.braintreeandwithamtimes.c...mplain/?ref=mr

I am off out so won't reply quickly.

M1

[mystery1]

Re: Parking eye appeal rejected - assistance with popla appeal please - thx

On the basis it's a paid car park.

I don't know what the specific penalty is so you'll need to change the £85 to whatever it is.




I wish to appeal this parking charge on the following grounds.


1. The charges are penalties and not a contractual charge, breach of contract or trespass. They are not a genuine pre estimate of loss either.


2. In order to form a contract the signs need to be clear so that they must be seen by an average person. They were not. There was no breach of contract.


3. Parking Eye do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.


4. Parking Eye have failed to adhere to the BPA code of practice.


5. Unreliable, unsynchronised and non-compliant ANPR system.

6. Keeper liability.


1.The charges are penalties.


The charges are represented as a failure to pay which is disputed. The driver on the day had difficulty in getting in and out of the car park due to traffic. According to the BPA code "If the parking charge that the driver is being asked to pay is for a act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"


£85 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for a small hourly sum. Neither is it commercially justified because it would make no sense and in any event in was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. The longer a driver stays in the various shops then the more profit is made. £85 is clearly a penalty. The £85 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £85 cannot be so as the figures quoted include business costs.


I require ParkingEye to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Parking Eye cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.


According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner allows free parking for shoppers and several hundred pounds were spent then there is no loss. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''


When one looks at the sign one sees that non blue badge holders are not allowed to park in disabled bays and are charged £100 if they do then it becomes even clearer that £100 is to deter people from misusing disabled bays and that £100 is an arbitrary amount charged for all transgressions and as such is an unenforceable penalty.

It was held in Parking Eye v Cargius that Beavis does not apply in a paid car park and that the charge is a penalty.




2. Unclear and non-compliant signage, forming no contract with drivers.


I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £85 in a carpark where they could have paid nothing. It was not a genuine attempt to contract for unlimited parking in return for £85.


As the PCN had no VAT content to it, it cannot be for a service. It must therefore be a penalty.




3.. Contract with landowner - no locus standi


Parking eye do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Parking eye has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Parking eye to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.




In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.




So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Parking eye and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/0ce354ec669790b4b7d83754d8ca32e5?AccessKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1



I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.




It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."




The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."




In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.




4. Failure to adhere to the BPA code of practice.


The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.


The BPA Code of Practice states under appendix B, entrance signage:




“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”


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. Upon returning to the car park after receiving this unjustified 'charge notice' to check the alleged terms at a later date, I had to get out of my car to even read the larger font on the signs, and the smaller font was only readable when standing next to a sign. They were also very brightly coloured but too busy, confusing and unclear. Everything except the 'welcome' heading is too unreadable to be compliant (photo attached).




Furthermore Parking Eye state that:


"The signs within the car park comply with the recommendations in the Code of Practice"


When with reference to the BCP Code of Practice, it actually states:


"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"


5. ANPR ACCURACY


This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator 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 this Operator 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 inParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form 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 the Operator 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 and I put this Operator to strict proof to the contrary.


6. Keeper liability.

The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required.

Right to claim unpaid parking charges from keeper of vehicle


4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met ....

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—


(b)has given a notice to keeper in accordance with paragraph 9.


9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(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, 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));
(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;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
(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 which each specify different parts of a single period of parking).
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(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.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.






The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not the person who was driving the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held that the specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid. It was also the deciding factor in Parking Eye v Mrs X Case No: 3JD08399 IN THE ALTRINCHAM COUNTY COURT.
http://nebula.wsimg.com/c289944f81b4...&alloworigin=1

Sections E & F has not been complied with at all. Other sections are not totally complied with either. The keeper is not invited to pay.



M1

[sparklers1#]

Re: Parking eye appeal rejected - assistance with popla appeal please - thx

Many thanks M1 for your time and assistance, it is much appreciated, I shall post the outcome of my POPLA appeal once I hear back from them. Kind regards

On the basis it's a paid car park.

I don't know what the specific penalty is so you'll need to change the £85 to whatever it is.




I wish to appeal this parking charge on the following grounds.


1. The charges are penalties and not a contractual charge, breach of contract or trespass. They are not a genuine pre estimate of loss either.


2. In order to form a contract the signs need to be clear so that they must be seen by an average person. They were not. There was no breach of contract.


3. Parking Eye do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.


4. Parking Eye have failed to adhere to the BPA code of practice.


5. Unreliable, unsynchronised and non-compliant ANPR system.

6. Keeper liability.


1.The charges are penalties.


The charges are represented as a failure to pay which is disputed. The driver on the day had difficulty in getting in and out of the car park due to traffic. According to the BPA code "If the parking charge that the driver is being asked to pay is for a act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"


£85 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for a small hourly sum. Neither is it commercially justified because it would make no sense and in any event in was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. The longer a driver stays in the various shops then the more profit is made. £85 is clearly a penalty. The £85 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £85 cannot be so as the figures quoted include business costs.


I require ParkingEye to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Parking Eye cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.


According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner allows free parking for shoppers and several hundred pounds were spent then there is no loss. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''


When one looks at the sign one sees that non blue badge holders are not allowed to park in disabled bays and are charged £100 if they do then it becomes even clearer that £100 is to deter people from misusing disabled bays and that £100 is an arbitrary amount charged for all transgressions and as such is an unenforceable penalty.

It was held in Parking Eye v Cargius that Beavis does not apply in a paid car park and that the charge is a penalty.




2. Unclear and non-compliant signage, forming no contract with drivers.


I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £85 in a carpark where they could have paid nothing. It was not a genuine attempt to contract for unlimited parking in return for £85.


As the PCN had no VAT content to it, it cannot be for a service. It must therefore be a penalty.




3.. Contract with landowner - no locus standi


Parking eye do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Parking eye has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Parking eye to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.




In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.




So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Parking eye and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/0ce354ec669790b4b7d83754d8ca32e5?AccessKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1



I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.




It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."




The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."




In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.




4. Failure to adhere to the BPA code of practice.


The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.


The BPA Code of Practice states under appendix B, entrance signage:




“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”


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. Upon returning to the car park after receiving this unjustified 'charge notice' to check the alleged terms at a later date, I had to get out of my car to even read the larger font on the signs, and the smaller font was only readable when standing next to a sign. They were also very brightly coloured but too busy, confusing and unclear. Everything except the 'welcome' heading is too unreadable to be compliant (photo attached).




Furthermore Parking Eye state that:


"The signs within the car park comply with the recommendations in the Code of Practice"


When with reference to the BCP Code of Practice, it actually states:


"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"


5. ANPR ACCURACY


This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator 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 this Operator 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 inParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form 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 the Operator 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 and I put this Operator to strict proof to the contrary.


6. Keeper liability.

The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required.

Right to claim unpaid parking charges from keeper of vehicle


4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met ....

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—


(b)has given a notice to keeper in accordance with paragraph 9.


9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(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, 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));
(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;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
(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 which each specify different parts of a single period of parking).
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(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.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.






The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not the person who was driving the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held that the specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid. It was also the deciding factor in Parking Eye v Mrs X Case No: 3JD08399 IN THE ALTRINCHAM COUNTY COURT.
http://nebula.wsimg.com/c289944f81b4...&alloworigin=1

Sections E & F has not been complied with at all. Other sections are not totally complied with either. The keeper is not invited to pay.



M1

[sparklers1#]

Re: Parking eye appeal rejected - assistance with popla appeal please - thx

Hi mystery1

I have already appealed to POPLA using your template and will let you know of the outcome - thank you. Since then I have managed to get to Morrisons in Braintree town centre and took a picture of the sign which sits approximately 6 foot up on a wall to the left hand side as you drive in the entrance. I have attached this as it may be of some use for someone else. Interestingly in their original parking notice to me and appeal rejection there is no detail of entry or exit time or photographs - just date and time of occurrence and that the vehicle did not display a ticket.......... the sign also advises that the first 30 minutes is free (no ticket required).

Sparklers1#

[sparklers1#]

Attn: Mystery 1. Re: Parking eye appeal (ongoing from April 2015)

Hi Mystery 1
I have been quiet as never received an outcome but the story so far..my appeal was scheduled to be heard on or soon after 17 June 2015 and I received an evidence pack from Parking Eye on 20th June 2015. I emailed POPLA on 22 June 2015 to advise of the delay in receiving the pack and also to advise that it contained 2 PCN's dated 26/2/15 and the other 7/3/15 neither of which was received by me and that the first communication I had received was dated 1/4/15.
I also noted to them that parking eye had failed to include a copy of their contract with the landowner giving them authority to operate on this land.
I heard nothing back for several months (I have mislaid the letter but think it was around November) when they advised that all appeals were held pending the outcome of the Beavis appeal.

Today 11/4/16 I have received a letter dated 7/4/16 from Wright Hassall solicitors (unfortunately do not have a facility to upload until tomorrow) but basically due to the time since my appeal I now have 7 days (until 14/4/16) to provide any further evidence in relation to my appeal.
Obviously I want to provide further evidence and thought I could use the following
BPA code of practice regarding signage - even though there are several the one at the entrance is six foot high and could not be read by any motorist on entering the car park as shown in my earlier photo.
secondly the failure to provide the contract with the landowner and then regarding Pofa 2012 as I genuinely did not receive any correspondence other than the letter dated 1/4/15. I never saw the PCN's they provided in their pack until I received the pack (which arrived after my appeal was due to be heard) which I believe they could easily knock up and backdate due to me appealing.
Hoping to hear back with any advice you can give as I literally have a couple of days to get back to them. Many thanks in advance!

[mystery1]

Re: Parking eye appeal rejected - assistance with popla appeal please - thx

Ok don't worry about the letter. I've seen it and there are a few ! It has also been posted http://parking-prankster.blogspot.co...ar-stayed.html

advise that it contained 2 PCN's dated 26/2/15 and the other 7/3/15 neither of which was received by me and that the first communication I had received was dated 1/4/15

I also noted to them that parking eye had failed to include a copy of their contract with the landowner giving them authority to operate on this land.

BPA code of practice regarding signage - even though there are several the one at the entrance is six foot high and could not be read by any motorist on entering the car park as shown in my earlier photo.

Absolutely.

Also steal some of coupon-mads stuff from http://forums.moneysavingexpert.com/....php?t=5445602 particularly regarding Beavis as this was a paid car park.

M1

[sparklers1#]

Re: Parking eye appeal rejected - assistance with popla appeal please - thx

Thank you just a couple of questions... Does it need to be the formal appeal type letter quoting the legal bits of POFA and BPA and if so Is there a template knocking around on the site or do you think a brief letter be sufficient just detailing the points above (I will check out the site you mention and add some bits). Cheers for your help.

[mystery1]

Re: Parking eye appeal rejected - assistance with popla appeal please - thx

I'll see what i can do.

M1

[mystery1]

Re: Parking eye appeal rejected - assistance with popla appeal please - thx

Any chance of seeing the PCN, contract/witness statement ?

M1

[sparklers1#]

Re: Parking eye appeal rejected - assistance with popla appeal please - thx

The original letter received from Parking Eye is attached on my first post (up the top) - (however in the evidence pack they have enclosed a couple of PCN's which I never received - do you want to see those?) In the evidence pack there is no contract/witness statement it just states:
Authority
Parking Eye can confirm that the above site is on private land, is not council owned and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or the landowner's agent). It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal or who though disclosing the fact that he is acting as an agent on behalf of a principal renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR5 Exch 169). IT follows that a lawful contract between parking eye and the motorist will be enforceable by Parking Eye as a party to that contract.

There was no contract or witness statement. I can upload their evidence but will take me a bit of time to sanitise as at work just now.

[mystery1]

Re: Parking eye appeal rejected - assistance with popla appeal please - thx

The 2 letters you attached in post 1 are not PCNs and i appreciate you say you never actually got any. Still helpful to pull them apart if possible.

M1

[sparklers1#]

Re: Parking eye appeal rejected - assistance with popla appeal please - thx

I have tried to upload the evidence pack but it is 8mb (double what I can upload) so I am working on trying to reduce it.....

[mystery1]

Re: Parking eye appeal rejected - assistance with popla appeal please - thx

Email it to [MENTION=49370]Kati[/MENTION] is probably easier as reducing it might make the relevant stuff unreadable.

M1