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Hi,
I'm at the at POPLA stage with PE and have formulated my response. Could someone (M1 hint,hint) please review and give me some advice as to whether it is suitable.
Thanks,
Vehicle Reg - xxxxxxxxxxx
PNC – xxxxxxxxxxxxxxx
POPLA Ref – xxxxxxxxxxxxx
Operator Name – Parking Eye LTD
As the registered keeper of the above vehicle, I wish to appeal against a recent parking charge notice brought against it. I believe I am not liable and would like to have the parking
charge notice cancelled on the following grounds:
1. Contractual Authority
2. Non-Compliant Signage
3. No Reasonable Grace Period
4. No contract with PE and Driver/Registered Keeper
5. ANPR Accuracy and Compliance
6. No Genuine Pre-Estimate of Loss/Punitive Charge
1. Contractual Authority
Parking Eye states that they have written authority to operate and issue parking charge notices on the site Tower Road Car Park Newquay from the landowner.
I request that Parking Eye submit evidence that proves that this statement is true. It has to be an up-to-date and signed contract which shows they are lawfully entitled to demand money from the
driver/registered keeper (in the event the driver has not been disclosed). I would also like to clarify that this should be an actual copy and not just a document stating such a contract exists.
2. Non-Compliant Signage
Although I wasn't the driver on the day in question, I would like to mention that the signs of Tower Road Car Park Newquay are non-compliant with the BPA Standards and therefore no valid contact
between Parking Eye and driver were agreed.
In Parking Eye original parking charge notice sent to myself it mentioned that "signage clearly displayed at entrance states that this is private land, the car park is managed by Parking Eye, maximum free stay is 0 hours 0 mins.
This signage was never seen and I contend that it was too high/too small to have easily been seen let alone read and understood before deciding to drive in. The only sign situated directly at the entrance was a sign stating "Fistral Beach 5 Minutes walk Welcome to Tower Road Car Park". I request that Parking Eye provide photographic evidence to show where this notice is and its visibility to drivers as they enter the car park.
Any signs displayed on ticket machines/tickets do not alter the contract which must be shown in full at the entrance.
I would also like Parking Eye to produce evidence 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 the fixed amount the operator is now demanding rather than simply the nominal amount presumably due in a machine on site.
3. Grace Period
The Parking Eye system monitors entry and exit to site and not the act of parking. There is no certainty with their system as to the formation of the contract as the offer of parking is only accepted when the car is at rest in the space. Since there is no clarity, the British Parking Association's own guidance on the matter suggests a 10 minute "grace" period at the beginning and at the end of the parking process to attempt to indicate when the contract was formed. It follows that any so-called and fallacious overstay of less than 20 minutes cannot exist - by the BPA's own rules. I put Parking Eye on notice to prove the exact time the contract was formed.
4. No contract with Parking Eye and driver/registered keeper
As mentioned previous, I was not the driver but would like to point out that the signs at Tower Road car park are inadequate to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Parking Eye 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 other drivers to unwittingly fall outside the terms of contact. As such, any contract would be void as in breach of the Unfair Terms in Consumer Contract Regulations 1999, repealed by the Consumer Rights Regulations 2015. They implement the Unfair Contract Terms Directive 93/13/EEC. The European Court of Justice has determined that the supplier is acting contrary to good faith and therefore unfairly if it could not reasonably assume that the purchaser would have agreed to it in individual contract negotiations
5. ANPR Accuracy and compliance
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. No Genuine Pre-Estimate of Loss/Punitive Charge
According to Parking Eye’s ANPR system, my vehicle was parked for 3 hour 23 minutes a stay that would authorise for payment of £4.80. £100 is quite clearly not a genuine pre estimate of their loss or loss to the landowner and clearly extravagant and unconscionable.
If Parking Eye believes their charge is a genuine pre estimate of their loss, I request they produce a detailed and itemised breakdown of how this is calculated. Even if payment was not paid which it was, their only loss for 23 minutes overstay would be £1.80.
Any costs in contacting the registered keeper could easily have been avoided by a simple modification to their system, allowing payment on exit. This is all simple to achieve with their present system with some easily achieved modifications.
From the foregoing the charge is extravagant, unconscionable, greatly in excess of local council tickets and clearly an unfair contractual term under UTCCR 1999 and is consequently unenforceable. The charge of £100 is clearly grossly disproportionate to the purported loss which would only be a small parking tariff of £1.80 for another hour if overstayed.
I respectfully request that this parking charge notice appeal be allowed and await your decision.
I'm at the at POPLA stage with PE and have formulated my response. Could someone (M1 hint,hint) please review and give me some advice as to whether it is suitable.
Thanks,
Vehicle Reg - xxxxxxxxxxx
PNC – xxxxxxxxxxxxxxx
POPLA Ref – xxxxxxxxxxxxx
Operator Name – Parking Eye LTD
As the registered keeper of the above vehicle, I wish to appeal against a recent parking charge notice brought against it. I believe I am not liable and would like to have the parking
charge notice cancelled on the following grounds:
1. Contractual Authority
2. Non-Compliant Signage
3. No Reasonable Grace Period
4. No contract with PE and Driver/Registered Keeper
5. ANPR Accuracy and Compliance
6. No Genuine Pre-Estimate of Loss/Punitive Charge
1. Contractual Authority
Parking Eye states that they have written authority to operate and issue parking charge notices on the site Tower Road Car Park Newquay from the landowner.
I request that Parking Eye submit evidence that proves that this statement is true. It has to be an up-to-date and signed contract which shows they are lawfully entitled to demand money from the
driver/registered keeper (in the event the driver has not been disclosed). I would also like to clarify that this should be an actual copy and not just a document stating such a contract exists.
2. Non-Compliant Signage
Although I wasn't the driver on the day in question, I would like to mention that the signs of Tower Road Car Park Newquay are non-compliant with the BPA Standards and therefore no valid contact
between Parking Eye and driver were agreed.
In Parking Eye original parking charge notice sent to myself it mentioned that "signage clearly displayed at entrance states that this is private land, the car park is managed by Parking Eye, maximum free stay is 0 hours 0 mins.
This signage was never seen and I contend that it was too high/too small to have easily been seen let alone read and understood before deciding to drive in. The only sign situated directly at the entrance was a sign stating "Fistral Beach 5 Minutes walk Welcome to Tower Road Car Park". I request that Parking Eye provide photographic evidence to show where this notice is and its visibility to drivers as they enter the car park.
Any signs displayed on ticket machines/tickets do not alter the contract which must be shown in full at the entrance.
I would also like Parking Eye to produce evidence 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 the fixed amount the operator is now demanding rather than simply the nominal amount presumably due in a machine on site.
3. Grace Period
The Parking Eye system monitors entry and exit to site and not the act of parking. There is no certainty with their system as to the formation of the contract as the offer of parking is only accepted when the car is at rest in the space. Since there is no clarity, the British Parking Association's own guidance on the matter suggests a 10 minute "grace" period at the beginning and at the end of the parking process to attempt to indicate when the contract was formed. It follows that any so-called and fallacious overstay of less than 20 minutes cannot exist - by the BPA's own rules. I put Parking Eye on notice to prove the exact time the contract was formed.
4. No contract with Parking Eye and driver/registered keeper
As mentioned previous, I was not the driver but would like to point out that the signs at Tower Road car park are inadequate to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Parking Eye 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 other drivers to unwittingly fall outside the terms of contact. As such, any contract would be void as in breach of the Unfair Terms in Consumer Contract Regulations 1999, repealed by the Consumer Rights Regulations 2015. They implement the Unfair Contract Terms Directive 93/13/EEC. The European Court of Justice has determined that the supplier is acting contrary to good faith and therefore unfairly if it could not reasonably assume that the purchaser would have agreed to it in individual contract negotiations
5. ANPR Accuracy and compliance
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. No Genuine Pre-Estimate of Loss/Punitive Charge
According to Parking Eye’s ANPR system, my vehicle was parked for 3 hour 23 minutes a stay that would authorise for payment of £4.80. £100 is quite clearly not a genuine pre estimate of their loss or loss to the landowner and clearly extravagant and unconscionable.
If Parking Eye believes their charge is a genuine pre estimate of their loss, I request they produce a detailed and itemised breakdown of how this is calculated. Even if payment was not paid which it was, their only loss for 23 minutes overstay would be £1.80.
Any costs in contacting the registered keeper could easily have been avoided by a simple modification to their system, allowing payment on exit. This is all simple to achieve with their present system with some easily achieved modifications.
From the foregoing the charge is extravagant, unconscionable, greatly in excess of local council tickets and clearly an unfair contractual term under UTCCR 1999 and is consequently unenforceable. The charge of £100 is clearly grossly disproportionate to the purported loss which would only be a small parking tariff of £1.80 for another hour if overstayed.
I respectfully request that this parking charge notice appeal be allowed and await your decision.
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