Author Topic: Lidl Car Park, Ilford - ParkingEye  (Read 749 times)

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zeezee

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Lidl Car Park, Ilford - ParkingEye
« on: January 26, 2024, 01:03:31 am »
Hi

The person who was driving, parked at a Lidl/farmfoods carpark for just over 4 hours. The car was parked there in the evening and was not for shopping.

The person tried to pay for the stay at the pay and display machine, however, there were issues with the machine, firstly there was no light near or coming from the machine, which made visibility extremely difficult, and secondary the face of the machine had been badly damaged/vandalised and it was difficult for anyone to see the buttons and when entering the registration of the car, it was almost impossible to see the screen, and see that it had been registering correctly.

There were two people in front, in line to pay and they also were having a lot of difficulty, in fact one in front said the machine was not working properly and was out of order after he made a few attempts.  However, regardless of this, the person in question still attempted and with a lot of difficulty put in the car registration and swiped the bank card. However, no money was taken having checked the statements.

Can an appeal be made here?





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b789

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #1 on: January 26, 2024, 04:00:01 pm »
Can you get or do you have any photos to show the state of the parent machine as you described it? Can you go back and take some photos. You will also need to show photos of the signs under the same lighting conditions as they were at the time you parked there. A phot of the terms and conditions signs would be useful too.

Whilst ParkingEye tend to be fairly well run and keep to the requirements of the BPA Code of Practice (CoP), occasionally they fail. There are always reasons to challenge these PCNs. Remember, they are on "fines" issued by the police or some "authority". They are speculative invoices for an alleged breach of contract issued by an unregulated private parking company.

There may be something in the terms that holds you bang to rights that states that if you are unable to make payment, you should not park and you should leave. Was there any option or offer to pay by another method such as telephone or app? Without seeing the signs, it is difficult to suggest how to word your appeal. If there is only one payment machine and it was broken or damaged, you have frustration of contract as one option.

The NtK is compliant with PoFA so they can hold you liable as the keeper.

zeezee

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #2 on: January 30, 2024, 07:10:28 pm »
Here are the pics...








M60NJP

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #3 on: January 31, 2024, 09:32:11 am »
Can't see the issue with the pay machine terminal? Has it been repaired?

zeezee

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #4 on: January 31, 2024, 05:29:39 pm »
Not sure, but it seems to be in much better condition.

So the appeal based on the driver issue does not go here?

zeezee

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #5 on: February 01, 2024, 09:36:00 pm »
Would I be able to submit the following or have the rules changed?

bearing in mind that the 28 period is nearly up...

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have just received your Notice to Keeper for the vehicle VRM xxxxxxxx.

You have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to give notice of keeper liability as prescribed by section 9 (2) (f) of the Act. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

There is no legal requirement to name the driver at the time and I will not be doing so.

I do not expect to hear from you again, or your debt collectors, except to confirm that no further action will be taken on this matter and my details have been removed from your records.


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DWMB2

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #6 on: February 01, 2024, 09:54:04 pm »
The 'rules' in regards to keeper liability have been the same since 2012, but that appeal does not seem to be appropriate here.

It's important that you understand the content of any appeal before you send it - have you compared the requirements outlined in section 9(2)(f) of Schedule 4 of the Protection of Freedoms Act against the contents of your notice to see if they have in fact failed to comply with it?

Back to the parking event itself - when did the driver attempt to make payment, was it when they first parked up?

zeezee

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #7 on: February 01, 2024, 10:44:03 pm »
The driver attempted to make payment when returning to the car park before the driver left the car park.

So is it better to pay the 100 fine at this point?
« Last Edit: February 01, 2024, 10:56:40 pm by zeezee »

b789

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #8 on: February 02, 2024, 02:31:19 pm »
Why would you want to pay 100 when you are able to challenge the PCN? Also, it is not a fine. You must understand that this is just a speculative invoice from an unregulated private parking company for an alleged breach of contract. PE are not an "wuthority" of any sort and cannot "fine" anyone.

That appeal you posted above is not going to work. The NtK is compliant with PoFA 2012 and so, they are able to hold the keeper liable. n this instance, there is no point in denying you weren't the driver, unless that is the actual case.

From the limited photos you have provided, I cannot see anywhere on their signage that prohibits you from parking if the payment machine is not functioning. In this case, you can claim frustration of contract. However, it may be a little bit difficult to prove that you didn't attempt to make payment.

Should this go to POPLA (more than likely) you would be able to put ParkingEye to strict proof that their payment machine was fully operational at the time you were there. You can ask them to provide logs of the payment machines that show, at the time, other motorists were able to make payments. If there is a substantial gap in successful payments being made at the time you attempted to pay, that could be evidence that the payment machine was not functioning.

It all depends on how badly you want to fight this. If you're prepared to just pay 100 for the easy life, then that is your decision. If you feel aggrieved enough about losing 100 of your hard earned money because of a fault with PEs payment machined as there was no obligation to try and park elsewhere according to their terms, then you can fight this on the basis that no contract was formed.

Of course, there will be other points to put in an appeal, especially if PE reject your initial appeal, and POPLA is more likely to look at any points you raise such as the provision of payment logs to which PE will be put to strict proof.
« Last Edit: February 02, 2024, 02:33:05 pm by b789 »

zeezee

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #9 on: February 04, 2024, 03:35:23 pm »
Appreciate your response - Thank you.

So I'll just wait now for PE's response and as you said they will reject but essentially give us the POPLA appeal and then we can make that appeal. Lets see how long that letter coems back then

b789

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #10 on: February 04, 2024, 04:11:56 pm »
Appreciate your response - Thank you.

So I'll just wait now for PE's response and as you said they will reject but essentially give us the POPLA appeal and then we can make that appeal. Lets see how long that letter coems back then

What exactly did you put in your appeal to PE?

zeezee

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #11 on: February 04, 2024, 04:26:08 pm »
Would I be able to submit the following or have the rules changed?

bearing in mind that the 28 period is nearly up...

---------
have just received your Notice to Keeper for the vehicle VRM xxxxxxxx.

You have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to give notice of keeper liability as prescribed by section 9 (2) (f) of the Act. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

There is no legal requirement to name the driver at the time and I will not be doing so.

I do not expect to hear from you again, or your debt collectors, except to confirm that no further action will be taken on this matter and my details have been removed from your records.


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This was submitted (edited version)

b789

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #12 on: February 04, 2024, 05:16:04 pm »
But that is more like a complaint rather than an appeal and bears no relevance to your original statement that you could not make payment because the payment machine was broken.

You claim that the NtK is not compliant with PoFA. However, you were already told that, in fact, it is compliant. Saying you are appealing as the keeper, in this instance, does not absolve you from liability for the charge.

The whole point was that you could not be held contractually liable as the failure of their payment machine with no other obvious method for making payment, frustrated your ability to complete any contract.

Anyway, this is all moot at this point. PE will likely reject your appeal and issue you with a POPLA code for your Plan C appeal.

Your POPLA appeal will be based on frustration of contract and will put PE to strict proof that the payment machine was in good working order at the time you attempted to make payment in good faith. You will, of course add any other points that PE must respond to such as evidence of a contract flowing from the landowner to PE permitting them to issue charge notices etc.

POPLA will not consider any mitigating factors. You must argue the frustration of contract issue on legal points and anything you can find in the BPA CoP. The Consumer Rights Act 2015 (CRA) is another piece of legislation you should try and familiarise yourself with as there are probably some points in the Act that could be useful.

https://www.legislation.gov.uk/ukpga/2015/15/contents/enacted

b789

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #13 on: February 04, 2024, 07:00:14 pm »
Your rights as a consumer in this case are probably covered under the following points in the CRA and must be used in your eventual POPLA appeal:

  • Impossibility of Performance: CRA Section 55(3) applies. You would need to emphasise that the frustration of contract occurred due to the impossibility of completing the payment element of the contract. Despite your willingness to fulfill your obligation to pay for parking, the faulty payment machine made it impossible to do so at the time of departure, as required by the terms of the contract.
  • Lack of Alternative Payment Methods: CRA Section 49 applies. Highlight the fact that there were no alternative methods of payment available. Since the contract did not provide any instructions or alternatives in the event of a malfunctioning payment machine, you were effectively left with no means to fulfil your payment obligation. While this section primarily addresses the quality and timing of services, it indirectly encompasses situations where a service provider fails to provide reasonable alternatives or instructions for completing a transaction when unforeseen circumstances arise. The lack of alternative payment methods could be considered a failure to perform the service with reasonable care and skill, as it hinders the consumer's ability to fulfill their payment obligation as agreed upon in the contract.
  • Unilateral Contract: While the CRA doesn't explicitly address unilateral contracts, its principles of fairness, reasonableness, and obligations of service providers to perform services with reasonable care and skill can still be applied to situations involving unilateral contracts, such as this. Acknowledge that while a contract by agreement was entered into at the time of parking, the payment aspect of the contract constitutes a unilateral contract. In a unilateral contract, one party (Parking Eye) promises to provide a service (parking) in exchange for the other party (you, the consumer) performing a specific act (making payment upon departure). Since you were unable to perform this specific act due to circumstances beyond your control, the contract was frustrated.
  • Good Faith and Fair Dealing: Section 49 requires that Parking Eye has a duty to act in good faith and deal fairly with consumers. This includes providing reasonable alternatives or instructions in situations where the performance of the contract becomes impossible due to unforeseen circumstances. The lack of any guidance or alternatives from Parking Eye further supports the argument of frustration of contract.
  • Consumer Rights Act 2015: Reiterate the relevant sections of the CRA, particularly Sections 49 and 56, which outline consumers' rights to services performed with reasonable care and skill, as well as situations where services are not performed in accordance with the contract. Emphasise that Parking Eye's failure to provide a working payment machine constitutes a breach of these rights.

The combination of the impossibility of performance, the lack of alternative payment methods, and the absence of guidance or alternatives from Parking Eye strengthens the argument for frustration of contract. You are entitled to request a remedy in line with the Consumer Rights Act 2015, such as a refund for any fees incurred, a waiver of the parking fee, or, in this case, you are requesting that Parking Eye cancel the PCN.
« Last Edit: February 04, 2024, 07:02:49 pm by b789 »

DWMB2

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Re: Lidl Car Park, Ilford - ParkingEye
« Reply #14 on: February 05, 2024, 10:46:18 am »
The whole point was that you could not be held contractually liable as the failure of their payment machine with no other obvious method for making payment, frustrated your ability to complete any contract.
I think it's important to back this point up with the fact that payment is only required before leaving, and that the driver only realised the machine was defective at the end of their stay when they went to pay before leaving (this is why I asked the question further up the thread).

ParkingEye may try to argue that if a driver is unable to pay, then they should choose not to park and leave. If it was a 'pay on entry' car park, this might be a stronger argument, as this choice would have been open to the driver. In this case however, with it being a 'pay before exit' car park, the driver only became aware of the inability to pay after choosing to park.