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ParkingEye PCN - no POFA
toontoonizer
post Mon, 18 Dec 2017 - 20:54
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Hi All,

My friend received a pcn notice as registered keeper from parkingeye for allegedly parking at the royal free hospital in hampstead and not paying.

Date of event: 29/11/2017
Date Issued: 13/12/2017

I have been reading around how to approach this one and one of the things which caught my eye was the fact that if there is no POFA wording there is a grounds for appeal. I have read and re read the parking notice multiple times and can find no mention of POFA on the front or back.

I just wanted to ask if this is indeed a way forward and if there is any specific wording to use in the appeal.

Thank you all for your help in advance!

This post has been edited by toontoonizer: Mon, 18 Dec 2017 - 20:55
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cabbyman
post Mon, 18 Dec 2017 - 21:02
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They are, by their own admission, outside of the time for the RK to receive the PCN. So, the RK writes back confirming this and also confirming that they will not be identifying the driver.

PE seem to be sending a lot of these out. I wonder if they may have more success, more economically, just scaring innocents into paying.


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toontoonizer
post Mon, 18 Dec 2017 - 21:20
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QUOTE (cabbyman @ Mon, 18 Dec 2017 - 21:02) *
They are, by their own admission, outside of the time for the RK to receive the PCN. So, the RK writes back confirming this and also confirming that they will not be identifying the driver.

PE seem to be sending a lot of these out. I wonder if they may have more success, more economically, just scaring innocents into paying.


Thanks for replying - i did count the days and it seems the notice was issued on the 14th day from the date of the event. But i didnt count the day it occurred?

Sorry if this is a stupid question but counting from the 30th its 14 days exactly, but from the 29th its 15 (which would put it outside of the time). Do you include the day of the event?
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nosferatu1001
post Mon, 18 Dec 2017 - 21:22
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Day of event is day 0
Must be received within 14 days. Issuing on day 13 means it cannot be deemed served within time as it’s assumed 2 days (working) for service.
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toontoonizer
post Mon, 18 Dec 2017 - 21:25
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QUOTE (toontoonizer @ Mon, 18 Dec 2017 - 21:20) *
QUOTE (cabbyman @ Mon, 18 Dec 2017 - 21:02) *
They are, by their own admission, outside of the time for the RK to receive the PCN. So, the RK writes back confirming this and also confirming that they will not be identifying the driver.

PE seem to be sending a lot of these out. I wonder if they may have more success, more economically, just scaring innocents into paying.


Thanks for replying - i did count the days and it seems the notice was issued on the 14th day from the date of the event. But i didnt count the day it occurred?

Sorry if this is a stupid question but counting from the 30th its 14 days exactly, but from the 29th its 15 (which would put it outside of the time). Do you include the day of the event?


Unless of course you are referring to Paragraph 9(6):

(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.

which would put it outside of the 14 day period?

QUOTE (nosferatu1001 @ Mon, 18 Dec 2017 - 21:22) *
Day of event is day 0
Must be received within 14 days. Issuing on day 13 means it cannot be deemed served within time as it’s assumed 2 days (working) for service.


yup got it - thank you very much.
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Dennis Basher
post Tue, 19 Dec 2017 - 10:23
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Your friend is the lucky recipient of a ParkingEye "golden ticket".

Under PoFA, the relevant period for delivery of this particular Notice to Keeper was the 14 days Thursday 30/11/17 - Wednesday 13/12/17 inclusive. Even if it was posted on the "Date of Issue" (i.e. Wednesday 13/12/17) it would be deemed to have been delivered on Friday 15/12/17 i.e. after the end of the relevant period. This is why ParkingEye have not claimed that they can use POFA to hold the keeper liable for the charge.

Your friend can check out suitable "appeals" by searching for "golden ticket" on the MoneySavingExpert Parking Forum. It is important to give no clues about who was driving.
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toontoonizer
post Sat, 13 Jan 2018 - 14:55
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Hi All,

so my friend received a reply from Parking Eye finally and they rejected the appeal. This was my appeal text:
"I am appealing as the keeper under Schedule 4 Paragraph 9 (4-6) of the Protection of Freedoms Act 2012, namely (5) where you have failed to deliver the notice to the keeper within 14 days from the date that the specified period of parking ended and (6) which specifies that unless the contrary is proven, a notice sent by post is presumed to have been delivered on the second working day after the day on which it is posted.

The notice that has been provided by post is dated 13/12/2017 and the specified period of parking ended on 29/11/2017 making the period of time greater than 14 days including 2 working days for service as defined in POFA Schedule 4 Paragraph 9 (5) & (6). As a result, the notice cannot be deemed served within time and I no longer have any liability for the actions of the driver, whom I have no legal responsibility to name.

Furthermore, only Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party. The PCN makes no attempt to pass liability to the keeper after 28 days. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found: ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

I do not expect to hear from yourselves again, other than to confirm that no further action will be taken and my personal details have been removed from your records. You must take the latter as a request under the Data Protection Act 1998 to prevent further distress and harassment. This mandates a response within 21 days."

They have offered an appeal through POPLA.

Is it worth going to POPLA or paying the discounted rate? Below is the wording of the PE response:
Thank you for your correspondence in relation to the Parking Charge incurred on xxxxxxxxxxxxx
We are writing to advise you that your recent appeal has been unsuccessful and that you
have now reached the end of our internal appeals procedure. Our records show that
insufficient time was paid for on the date of the parking event. Please be advised:
 There is an independent appeals service (POPLA) which is available to motorists
who have had an appeal rejected by a British Parking Association Approved
Operator. Contact information and further information can be found enclosed. See
also www.popla.co.uk
 As a gesture of goodwill, we have extended the discount period for a further 14
days from the date of this correspondence. If you appeal to POPLA and your
appeal is unsuccessful you will not be able to pay the discounted amount in
settlement of the Parking Charge, you will be liable to pay the full amount. If you
have already paid the reduced amount, the Parking Charge will be increased to
the full amount and you will be liable to pay this increase.
 By law we are also required to inform you that Ombudsman Services
(www.ombudsman-services.org/) provides an alternative dispute resolution
service that would be competent to deal with your appeal. However, we have not
chosen to participate in their alternative dispute resolution service. As such should
you wish to appeal then you must do so to POPLA, as explained above.
A payment can be made by telephoning our offices on 0330 555 4444 or by visiting
www.parkingeye.co.uk or by posting a cheque or postal order to ParkingEye, PO Box
565, Chorley, PR6 6HT.
Yours faithfully,

thoughts?
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kommando
post Sat, 13 Jan 2018 - 14:59
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QUOTE
Is it worth going to POPLA or paying the discounted rate?


You have a Golden ticket and it has already been spelled out to you its a winning ticket, but PE always reject and then fold at POPLA.

Draft your POPLA appeal and post for critique before submitting.
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toontoonizer
post Sat, 13 Jan 2018 - 15:06
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QUOTE (kommando @ Sat, 13 Jan 2018 - 14:59) *
QUOTE
Is it worth going to POPLA or paying the discounted rate?


You have a Golden ticket and it has already been spelled out to you its a winning ticket, but PE always reject and then fold at POPLA.

Draft your POPLA appeal and post for critique before submitting.


Thank you so much for replying - i found it surprising they would reject a valid appeal! I will draft and post here - do you have any template that I can use as a guide for POPLA appeals - or know where i can get one? That would be much appreciated.

This is what i have drafted so far:

"Dear Sir/Madam,
I am writing to you today in appeal of a request to pay a penalty from Parking Eye.

I was contacted by Parking Eye as registered keeper of the vehicle in question through a postal letter. The notice (a scan is attached as evidence) states that the date of issue is 13/12/2017 and that the specified period of parking ended on the 29/11/2017.

I appealed through ParkingEye’s internal appeals procedure on 19/12/2017 at 10:36am on the grounds that as the keeper under Schedule 4 Paragraph 9 (4-6) of the Protection of Freedoms Act 2012, namely (5) where they have failed to deliver the notice to the keeper within 14 days from the date that the specified period of parking ended and (6) which specifies that unless the contrary is proven, a notice sent by post is presumed to have been delivered on the second working day after the day on which it is posted. I attach my appeal as evidence.

I received a response from ParkingEye on 12/01/2018 at 16:03 stating that my appeal had been rejected and offering me the option to appeal through POPLA or to pay a discounted rate (response is attached as evidence). I have chosen to appeal through POPLA on the grounds that as the keeper under the Payment of Freedoms Act 2012, ParkingEye have failed to deliver the notice to the keeper within 14 days from the date the specified period of parking ended.

Thank you for taking the time to consider my appeal. I look forward to your response.

Kind Regards,"

I would welcome any suggestions and comments.

Kind Regards,
Hussain

This post has been edited by toontoonizer: Sat, 13 Jan 2018 - 15:23
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cabbyman
post Sat, 13 Jan 2018 - 20:23
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GET OFF THIS THREAD!!!

How many POPLA appeals have you seen like that on the forum?????

You need to read, research and understand. Your POPLA appeal is about 4000+ words. Go and do some work and post a poroper draft on here for checking.


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toontoonizer
post Sat, 13 Jan 2018 - 20:37
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QUOTE (cabbyman @ Sat, 13 Jan 2018 - 20:23) *
GET OFF THIS THREAD!!!

How many POPLA appeals have you seen like that on the forum?????

You need to read, research and understand. Your POPLA appeal is about 4000+ words. Go and do some work and post a poroper draft on here for checking.


Thank you! This was the most helpful post I've received!!!!!!!!!! Given that I have seen 0 drafts I don't see how a post that berates rather than informs is even helpful?

But again, thanks.

Did some research - and found this 4000+ word appeal to POPLA or this one (http://forums.pepipoo.com/index.php?showtopic=110443) - is this the accepted format?:
Hello

I have had my initial appeal rejected by UKPC and have now made a second draft of my Popla appeal and I would appreciate any feedback.

I am the registered keeper of the vehicle that was issued a Parking Charge Notice (PCN) with the ref code xxxxxxx by UK Parking Control (UKPC). I submit the points below to show that I am not liable for the parking charge:

1. No genuine pre-estimate of loss
2. No standing or authority to pursue charges, nor form contracts with drivers
3. The signage was inadequate so there was no valid contract formed
4. Non-compliant Notice to Keeper
5. No Creditor identified on the Notice to Keeper



1. No genuine pre-estimate of loss
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. Parking charges must be based on the loss that is suffered as the British Parking Association (BPA) Code of Practice states:
19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
and

19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable
The keeper therefore declares that the charge is punitive and therefore an unenforceable penalty.
The UKPC Notice to Keeper (NTK) alleges 'breach of terms' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at the nearby shops and cafes if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was almost empty on arrival and when the driver left.
I have not received any breakdown of how UKPC calculated their charge and so therefore require UKPC to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The landowner/occupier would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. UKPC cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some a statement that merely claims that charges were calculated to compensate UKPC for their “losses”.

2. No standing or authority to pursue charges, nor form contracts with drivers
UKPC do not own the land on which the car was parked, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such a title, UKPC must have an assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. UKPC have not given me a notice that declares this in their rejection of my initial appeal, so I have no proof that such a document is in existence. I contend that UKPC merely did hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right, which would meet the strict requirements of section 7 of the BPA Code of Practice.
I therefore put UKPC to strict proof to provide POPLA and me with an unredacted, up-to-date copy of the contract between UKPC and the landowner. This is required so that POPLA and I can check that it allows UKPC to make contracts with drivers and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. I am aware that in some cases a witness statement is used instead of a contract, however this will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). There is also no proof that the alleged signatory on behalf of the landowner has ever seen the relevant contract or, indeed, is even an employee of the landowner. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable, not proving full BPA compliance and is not sufficient to prove UKPC have the necessary legal standing at this location to bring a claim in their own name nor to form any contractual relationship between UKPC and motorists.

3. The signage was inadequate so there was no valid contract formed
At the time of parking and leaving the car park the occupants of the car did not see any signs that mentioned restricted parking.
I require UK Parking Control to state the height and position of each sign in their response. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. Therefore, it is the fault of UKPC in the drafting and positioning of the signs that the driver did not see them at all. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of UK Parking Control and so are not expecting to read a contract.
It was dark when the driver parked the car and when I visited the site upon receipt of the parking charge, I saw that the sign is placed high up and is unlit, so that in darkness no signs are clearly visible and the words are unreadable. I put UKPC to prove otherwise; and as well as provide a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective and is not lit by headlights. Therefore the sign breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area.
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

4. Non-compliant Notice to Keeper - no keeper liability established under POFA2 2012
The 'period of parking' is not shown on the NTK, only the time of issue of an alleged PCN. Therefore the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4. According to Schedule 4 para 8, the Notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
The NTK is a nullity so no keeper liability exists.

5. No Creditor identified on the Notice to Keeper
The ‘Notice to Keeper’ does not comply with paragraph 9(2)(h) of Schedule 4 of the POFA 2012 as it does not identify the creditor. Whilst the Notice has indicated that the operator requires a payment to be made to UKPC, there is no specific identification of the Creditor, who may, in law, be UKPC or some other party. The POFA 2012 requires a ‘Notice to Keeper’ to have words to the effect that 'The Creditor is….' and the Notice does not.


This concludes my appeal and I respectfully request that my appeal be upheld and the charge be dismissed.
Yours faithfully,

So i take it you wont approve of this one either?

This post has been edited by toontoonizer: Sat, 13 Jan 2018 - 20:46
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cabbyman
post Sat, 13 Jan 2018 - 21:03
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No. That one's only 1400 words. They also take more than 14 minutes to find, read, understand and adapt.

Go to completed cases and find a RECENT case, within the last year or so.

Also search for my cases CEL Hedge End, ECP Shell Gatwick, Met Gatwick, Indigo Southampton.

The reason that you have seen 0 drafts is that you are not looking, reading and understanding. If my berating snaps you out of that, it will be worthwhile.


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ostell
post Sat, 13 Jan 2018 - 21:08
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That was a very old one you found with GPEOL. After the Beavis case this is a no no. And there's no mention of the failure to deliver witin the relevant tim

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SchoolRunMum
post Sat, 13 Jan 2018 - 23:23
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Dennis Basher directed you to MSE forum, yet you seem to have missed the NEWBIES FAQs sticky thread on there at the top - where the POPLA template words are in post #3 of it.

QUOTE
Is it worth going to POPLA or paying the discounted rate?
LOL, it's a golden ticket, you can't lose!

You could even find a pre-written one on MSE merely by searching 'golden ticket POPLA' and copy one from 2017. So easy.
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toontoonizer
post Fri, 26 Jan 2018 - 10:55
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Want to say apologies and thank you to everyone who has helped. I have worked on the appeal and this is what i have so far. I'm not sure whether to include the point around signage but can include if it would be useful? Also the point around grace periods - there is no mention on the PCN about a grace period hence i kept it in - again welcome any thoughts on that.

"
Dear POPLA,

On the 13/12/2017, 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

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 Wednesday 29th November 2017. The relevant period is therefore the 14 day period from Wednesday 29th November 2017 to Wednesday 13th December 2017 inclusive. 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 Wednesday 13th December 2017 and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on Friday 15th December 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) (This is from the template, but I think the notice we received does state this so I will take it out once I check on the notice)

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 2 hour and 38 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 2 hours 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 issued 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 13:53 and merely leaving at 16:31. 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 2 hour and 38 minutes. Sufficient payment was made for 2 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

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 toontoonizer: Fri, 26 Jan 2018 - 10:56
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nosferatu1001
post Fri, 26 Jan 2018 - 11:24
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You alays challenge signs, and of course you keep in the point on gracce periods.
Noone at PE actually reads the appeal made directly to them ,thye send a generic rejection out.
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toontoonizer
post Fri, 26 Jan 2018 - 14:34
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QUOTE (nosferatu1001 @ Fri, 26 Jan 2018 - 11:24) *
You alays challenge signs, and of course you keep in the point on gracce periods.
Noone at PE actually reads the appeal made directly to them ,thye send a generic rejection out.


This is the signage wording i found with PE Golden Ticket POPLA appeal. I've amended where necessary to adapt (not that there was much to change) - is it ok to keep the links in?



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:

hxxp://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:

hxxp://wXw-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

hxxp://wXw.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:

hxxp://wXw.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.
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nosferatu1001
post Sat, 27 Jan 2018 - 11:53
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Popla won’t follow any links, ever. If you have pics you insert those in the appeal, isn’t eh body of the appeal to break up the reams of text.
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toontoonizer
post Tue, 30 Jan 2018 - 09:04
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ok so i went to submit the appeal to POPLA - but there is a 2000 character limit for providing appeals. Obviously the appeal text above is larger than 2000 characters - have they changed the process or did i miss something? Do i attach the appeal as evidence?

EDIT: did some searching, am going to attach full appeal text as PDF and leave comment to refer to that

This post has been edited by toontoonizer: Tue, 30 Jan 2018 - 09:23
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nosferatu1001
post Tue, 30 Jan 2018 - 15:12
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Yep, under “other”, ensure you refer to your appeal file name as well
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