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Parking Eye - Preston, 13 minute overstay
Bucket
post Thu, 12 Oct 2017 - 16:00
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I went to Preston centre and the driver parked in a Corporation Street car park, we were just nipping to a few shops so paid for a 1 hour ticket £1.
We got lost and could not find the way back to the car. We eventually found it, there was no ticket on the car, and we drove back.

The RK has now received a parking charge for £60 (£100 if not paid in 28 days) for staying in car park for 1h 13 minutes.

The charge notice has time stamped images of the car entering and leaving the car park.
The date of event is 16/09/2017, date charge notice issued is 28/9/2017. The RK has only today opened a reminder as he is no longer living at home.

Obviously £60 (or £100) is completely unfair for 13 minutes overstaying. Please could you advise what the RK's options are?

This post has been edited by Bucket: Thu, 12 Oct 2017 - 16:43
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post Thu, 12 Oct 2017 - 16:00
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Dave65
post Thu, 12 Oct 2017 - 16:30
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Edit your post now and remove anything that will ID the driver, state only "the driver" did this or did that. Important that no indication is given who drove.

Dates of event and PCN and date received needed, a copy with personal info redacted would be helpful

Refer only to "the keeper" of the car

Which PPC?

This post has been edited by Dave65: Thu, 12 Oct 2017 - 16:33
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Bucket
post Thu, 12 Oct 2017 - 16:59
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Thanks post edited.

PPC is ParkingEye.




From the ParkingEye website.



This post has been edited by Bucket: Thu, 12 Oct 2017 - 17:40
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Jlc
post Thu, 12 Oct 2017 - 17:34
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There are arguments about grace periods and contract commencement but with a non-POFA PCN it’s an easy win at POPLA.

Appeal, rejection, appeal, win. Simply that they’ve issued a PCN to the keeper but have nothing to show the keeper was driving.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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Bucket
post Thu, 12 Oct 2017 - 17:47
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Thanks, that sounds like great news.

Would you able to assist with the wording of the appeal or point me in the right direction. I have searched the forum but, with so many posts, I'm unable to find any with similar circumstances.
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Bucket
post Thu, 12 Oct 2017 - 19:04
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I'm not sure what makes this non POFA2012 compliant. I've have read the POFA requirements an they appear to have been met in my case.
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Jlc
post Thu, 12 Oct 2017 - 19:15
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QUOTE (Bucket @ Thu, 12 Oct 2017 - 20:04) *
I'm not sure what makes this non POFA2012 compliant. I've have read the POFA requirements an they appear to have been met in my case.

...how about 'Warn the keeper that if the parking charges remains outstanding after 28 days and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that “creditor” will be entitled to recover the parking charge from the registered keeper.'?


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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kommando
post Thu, 12 Oct 2017 - 19:28
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QUOTE
The date of event is 16/09/2017, date charge notice issued is 28/9/2017


The 28th is a thursday, by the time their bulk mailing minions had got their act together it may not arrived until after the weekend, so when did it arrive ?

They only get 14 days but it must arrive in those 14 days, posting it is not enough, they used the wording as I suspect they know it did not get to you in time.
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Bucket
post Thu, 12 Oct 2017 - 19:47
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As the RK is not living at home (Uni) his mail just builds up. I can't say when it actually arrived.

Should I keep the initial appeal short, as it's going to be rejected anyway?

I was thinking of the following on the online form.

"You have sent the the charge notice to myself, the registered keeper of the vehicle. As the notice is not POFA 2012 compliant, I am under no legal obligation to identify the driver.
You have shown no evidence that I, as the registered keeper, has any liability for this charge."
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kommando
post Thu, 12 Oct 2017 - 19:49
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Well as they are not using keeper liability the keeper can tell them to chase the driver and leave the keeper alone.

this still works too.

QUOTE
...how about 'Warn the keeper that if the parking charges remains outstanding after 28 days and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that “creditor” will be entitled to recover the parking charge from the registered keeper.'?


Read the whole notice, where does it specifically state the keeper is liable, they don't say that because they know the keeper is not liable.
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Bucket
post Thu, 12 Oct 2017 - 19:59
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QUOTE (kommando @ Thu, 12 Oct 2017 - 20:49) *
Well as they are not using keeper liability the keeper can tell them to chase the driver and leave the keeper alone.


So should I reply with this?

QUOTE (Bucket @ Thu, 12 Oct 2017 - 20:47) *
"You have sent the the charge notice to myself, the registered keeper of the vehicle. As the notice is not POFA 2012 compliant, I am under no legal obligation to identify the driver.
You have shown no evidence that I, as the registered keeper, has any liability for this charge."


Should I leave out the bit about the notice not being compliant and under no obligation to identify the driver?
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Jlc
post Thu, 12 Oct 2017 - 20:05
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QUOTE (kommando @ Thu, 12 Oct 2017 - 20:49) *
Read the whole notice, where does it specifically state the keeper is liable, they don't say that because they know the keeper is not liable.

Exactly.

How about being a tad cheeky and state that you want a POPLA code as you know they will cancel it.

(What they actually do is issue a POPLA code and then not contest any appeal)


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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kommando
post Thu, 12 Oct 2017 - 20:11
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Dear PE,
ref XXXXXXXXX

I am the keeper of XXXXXX

I note that your notice is not compliant with POFA 2012 in respect of keeper liability, as requested I have passed on the notice to the driver. I am under no legal obligation to identify the driver so expect no more communication from yourselves on this matter.

If you disagree with this then issue a POPLA code so POPLA can cancel it on your behalf.


Love and kisses



YYYY

edit Italics optional wink.gif

This post has been edited by kommando: Thu, 12 Oct 2017 - 20:15
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Bucket
post Thu, 12 Oct 2017 - 20:16
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QUOTE (kommando @ Thu, 12 Oct 2017 - 21:11) *
Dear PE,
ref XXXXXXXXX

I am the keeper of XXXXXX

I note that your notice is not compliant with POFA 2012 in respect of keeper liability, as requested I have passed on the notice to the driver. I am under no legal obligation to identify the driver so expect no more communication from yourselves on this matter.

If you disagree with this then issue a POPLA code so POPLA can cancel it on your behalf.

Love and kisses

YYYY



Thanks Kommando, I'll send that. I might change the love and kisses bit biggrin.gif

This post has been edited by Bucket: Thu, 12 Oct 2017 - 20:21
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ostell
post Thu, 12 Oct 2017 - 20:59
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They have failed the 14 days anyway by issuing on day 12 but this was a Thursday so the assumed delivery would not be until 2 workign days later, which takes it to the Monday which would be day 16.

That's the reason it's a non POFA NTK. They know they've got it wrong but just hope you don't realise and pay.
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Bucket
post Fri, 3 Nov 2017 - 13:50
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As expected Parking Eye have rejected the appeal. Letter came yesterday dated 26/10/17.





I have compiled a Popla appeal. I'd appreciate any feedback.



Dear POPLA,

On the 28/09/2017, ParkingEye Ltd. issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “…either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted…”

As the registered keeper I wish to refute these charges on the following grounds:
1) As the registered keeper, I have no liability for this charge.
2) The operator failure to adhere to the British Parking Associations (BPA) Code of Practice Grace’ Periods
3) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
4) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver

1) As the registered keeper, I have no liability for this charge.

To support this claim further the following areas of dispute are raised:

The Notice to Keeper is not compliant with Protection of Freedoms Act 2012 (POFA) for the following reasons
The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012.
As the Notice to Keeper is not POFA 2012 compliant, the charge liability cannot transfer from the driver to the registered keeper. Parking Eye need to pursue the driver for the charge, not the registered keeper.
For the reasons above, the appellant is not liable for this charge notice.

The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on Saturday 16th September. The relevant period is therefore the 14 day period from Saturday 16th September 2017 to Friday 28th September 2017 iinclusive. Sub-paragraph 9 (6) states that 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. The “Letter Date” stated on the PCN is Thursday 28th September and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on Monday 2nd October 2017 (i.e. outside of the relevant period).

The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a NTK much adhere to the following points:
The notice must be given by—
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;

Upon reviewing the NTK, ParkingEye Ltd have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f).

Parking Eye could only potentially enforce this charge against a known driver and there is no evidence of who that individual was.

Parking Eye are attempting to transfer the charge to the appellant. They have no legal grounds to do so.

2) Failure to adhere to the British Parking Associations (BPA) Code of Practice ‘Grace’ Periods.

Although Parking Eye LTD have failed to state the fact on any of their paperwork the driver had purchased a parking ticket for the day and time in question. The alleged offence by Parking Eye Ltd , “…either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted…”, is assumed to relate to the fact that there was a 1 hour and 13 minute gap between Parking Eye’s ANPR system taking images of the vehicle passing the entrance/exit to the car park, while the driver paid for 1 hour of parking.

The BPA Code of Practice clearly highlights within section 13 that a company’s approach to parking management must allow a vehicle “…a reasonable period without having their vehicle issues with a parking charge notice.” Subsections 13.2 and 13.4 offer further clarification stating that
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still
allow them a grace period to read your signs and leave before you take enforcement action.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

Upon receiving the Parking Charge, the document described the vehicle as merely entering the car park at 13:48 and merely leaving at 15:01. The BPA sets a minimum of 10 minutes just to leave, not a maximum grace period. As Kelvin Reynolds of the BPA quoted in the news article ‘Good car parking practice includes ‘grace’ period’: “…there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.” To briefly summaries his definition, an observational period must include sufficient time for a motorist to park, observe the signs, make a decision as to whether they wish to comply with the conditions and pay.

The total time from arrival to exit was 1 hour and 13minutes. Sufficient payment was made for 1 hour of parking. It is clear from the evidence that ParkingEye Ltd. have failed to uphold and consider reasonable grace periods set out in the BPA Code of Practice, as the total time within the car park does not allow for the driver to make the necessary observations, as highlighted by Kelvin Reynolds above, nor allow the necessary grace period for finding a parking space, purchasing the ticket and leaving the car park.

3) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

It is suggested that ParkingEye Ltd. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that ParkingEye Ltd. be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

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 authorisation must also set out:
a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d. who has the responsibility for putting up and maintaining signs
e. the definition of the services provided by each party to the agreement



4) Signage does not comply with the BPA Code of Practice and were not prominent, clear or legible from all parking spaces to form any contract with a driver

The BPA Code of Practice clearly states that:
18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.
Baring this paragraph in mind, there was categorically no contract established between the driver and ParkingEye Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. When the driver arrived at the car park it was impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located and the terms and conditions illegible.

As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this 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:

http://imgur.com/a/AkMCN

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 and poorly placed – particularly to a driver entering the site. In fact, some signs are obscured and hidden in some areas with large areas of the car park without visible signs. The signs 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. In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

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 the majority 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 operator’s 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:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''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.
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 an example of a binding case law from the Court of Appeal offers further supports my argument:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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.

Based on these points, it is believed that ParkingEye Ltd. are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions and driver safety. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, request that ParkingEye Ltd. be required to provide strict proof of exactly where the car was parked (from photos taken in the same lighting conditions) and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date, time and lighting condition of the alleged event. I submit that full terms simply cannot be read safely from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. In addition to this, it is requested that any neighbouring signs to the entrance and vehicle parking location to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted, or the driver misinformed.

In summary, these points demonstrate the claim by ParkingEye Ltd is invalid and should the claim continue, further action and evidence requested in this appeal is required from ParkingEye Ltd.



This post has been edited by Bucket: Fri, 3 Nov 2017 - 13:53
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Bucket
post Sat, 4 Nov 2017 - 12:12
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Has anyone got feedback on the appeal above, any glaring mistakes?

Is there any point in delaying submitting until closer to the 23rd November deadline?
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Bucket
post Tue, 14 Nov 2017 - 19:52
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Two emails today.
One from Popla.
QUOTE
Dear xxx

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference xx

Parking Eye Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team


Other from Parking eye
QUOTE
Dear Sir / Madam,
We refer to the Parking Charge incurred on 16 September 2017 at 15:01, at Corporation
Street, Preston PR1 2UP car park.
As a gesture of goodwill, we can confirm that this Parking Charge has now been
cancelled and there is no outstanding payment due.
We understand that receiving a Parking Charge Notice may be inconvenient, however,
issuing Parking Charges for breaches of the parking terms and conditions at this car park
is necessary to ensure a better overall parking experience for all users of the facilities.
To avoid potential future inconvenience, we would kindly request you follow the parking
terms and conditions displayed on the signage throughout the car park.
Yours faithfully,

ParkingEye Team


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Jlc
post Tue, 14 Nov 2017 - 20:24
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A gesture of goodwill!!!! What planet are they on.

This no contest routine is getting tiresome.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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