PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

[wheretheresawill]

Hi I tried appealing the PCN and it was unsuccessful. This is what I sent PCN -

I, as registered keeper, wish to invoke your appeals procedure. The driver, whom I am under no statutory obligation to name and will not do so, did not see any signs. The time cited on your correspondence does not reflect an accurate time spent driving around the car park looking for parking therefore your timing calculations are not a true reflection of the time the vehicle was parked in the car park. In any event your charges are penal and not a genuine pre estimate of loss.

Parking Eye want me to pay £50 otherwise it increases after 14 days. Should I pay or appeal?

Here are scans of the letters I received -

Parking Eye -
http://s16.postimg.org/733y1mp6t/image.jpg
http://s16.postimg.org/5a11db405/image.jpg
http://s16.postimg.org/w466vwphh/image.jpg
http://s16.postimg.org/5o7fa0uf9/image.jpg
http://s16.postimg.org/hif67nsp1/image.jpg
http://s16.postimg.org/opgv3j3lx/image.jpg
POPLA -
http://s16.postimg.org/6wvavnmdh/image.jpg
http://s16.postimg.org/pt0zfho91/image.jpg


Please advise

[mystery1]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

Hi I tried appealing the PCN and it was unsuccessful. This is what I sent PCN -



Parking Eye want me to pay £50 otherwise it increases after 14 days. Should I pay or appeal?

Here are scans of the letters I received -

Parking Eye -
http://s16.postimg.org/733y1mp6t/image.jpg
http://s16.postimg.org/5a11db405/image.jpg
http://s16.postimg.org/w466vwphh/image.jpg
http://s16.postimg.org/5o7fa0uf9/image.jpg
http://s16.postimg.org/hif67nsp1/image.jpg
http://s16.postimg.org/opgv3j3lx/image.jpg
POPLA -
http://s16.postimg.org/6wvavnmdh/image.jpg
http://s16.postimg.org/pt0zfho91/image.jpg


Please advise

Do you have the original charge letter ?

Failing that is it a paid or free car park ?

M1

[wheretheresawill]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

Hi M1,

Yes here is the original PCN http://s3.postimg.org/dpe46mmib/front.jpg

What happens if the POPLA appeal fails? The driver genuinely didn't know there was a 2 hour limit.

[mystery1]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

I'll get to that asap.

If popla fails you either pay or ignore. By this time Beavis will be decided and you'll be far better informed to make that choice.

M1

[mystery1]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

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.




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. The driver was actually parked for just under 2 hours. 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 £85. 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 free and didn't even exceed the allowed parking time. 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 court of appeal. 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 £100 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 as the loss of revenue is actually bogus as the driver did not exceed the time limit for parking and indeed spent quite a bit in the retail park. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £100 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.




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/71a4eb1b5de2...essKeyId=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.






M1

[wheretheresawill]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

wow thats some heavy artillery!

The transcript link you provided doesn't work? Can you double check that please? http://nebula.wsimg.com/71a4eb1b5de2...essKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1

If this fails does the maximum £85 or more have to be paid or will they still want £50?

Thanks M1 you are a legend!

[wheretheresawill]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

wow thats some heavy artillery!

The transcript link you provided doesn't work? Can you double check that please? http://nebula.wsimg.com/71a4eb1b5de2...&alloworigin=1

If this fails does the maximum £85 or more have to be paid or will they still want £50?

When sending the online POPLA appeal I will check these options -

Why are you appealing? (Please tick)

• I was not improperly parked.
• The parking charge (ticket) exceeded the appropriate amount.
• I am not liable for the parking charge.

Thanks M1 you are a legend!

[mystery1]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

http://nebula.wsimg.com/0ce354ec6697...&alloworigin=1

They'll want £85.

M1

[wheretheresawill]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

Whats your success rate? lol

Will they actually provide the data thats been asked or hopefully its too much hassle they let us win?

[mystery1]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

Whats your success rate? lol

Will they actually provide the data thats been asked or hopefully its too much hassle they let us win?

To my knowledge i haven't lost at popla, ever.

M1

[wheretheresawill]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

Hi M1,

Hope you are well. Below is an email from POPLA. It's given me sweaty palms.. What do you make of it?

The operator in your case has applied for an adjournment, pending a decision of the Court of Appeal which they say has relevance to your own appeal. The case is ParkingEye Limited v Beavis (B2/2014/2010).


The Lead Adjudicator has already granted a similar application in a small number of cases. Your appeal was not due for determination when the application was made and has not yet been considered in any way. Your case will be adjourned for 28 days.


If either party want a further adjournment after 28 days then the matter will be considered further. The operator should still submit evidence in the usual way at this stage.

It is likely that there will be widespread publicity when the Court of Appeal decision is known. However, in any event, should either party wish to make further representations following that decision, they will be able to do so and the other party will have the opportunity to comment on them.

Your appeal will now be considered on or soon after 21 May 2015 .

Yours sincerely
POPLA Administrative Team

[mystery1]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

I think we'll need to revisit the appeal and once the supreme court date is known apply for a stay too. Give it until around 13/14th and give me a nudge.

M1

[wheretheresawill]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

what do you mean by "apply for a stay too"?

Thanks

[mystery1]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

Well if Parking eye asked for a stay (postponement) to wait for the court of appeal judgement then it should equally be ok to await the even higher authority decision from the supreme court. Parking eye won't want to wait because they are currently happy with what the courts have said but ay not be when all is said and done.

M1

[wheretheresawill]

Re: PCN Parking Eye Appeal denied Now POPLA Appeal or pay?

Which way are the scales tipping? What's the best and worst case scenario now? I don't want this escalating and having to pay more.