Parking Eye, Sankt Augustin Retail Park, Grantham

Dear XXXXX,

I refer to your note below concerning a Parking Charge Notice (PCN) received from Parking Eye at St. August in Retail Park, Grantham. My apologies for the slight delay getting back to you. We manage the site on behalf of South Yorkshire Pensions Authority and the parking management is there to prevent often misuse of the car park and I’ve been gathering information from Parking Eye on the charge in question. I understand that, despite you assertion below of 2 separate visits by the same vehicle, Parking Eye, having reviewed footage, can only see the vehicle entering and exiting once. The vehicle entered at 12.28 and left at 15.34 staying in total 3 hours and 6 mins which is well over the time allowance I’m afraid.

The above notwithstanding, you may or may not be aware that you can appeal to Parking Eye providing suitable evidence that you were a genuine shopper on the park. I understand that to date no such evidence has been presented and you have only written to Parking Eye to request the fine be rescinded which is unlikely to bear any fruit. If you were a genuine shopper and can provide copies of receipts as proof of purchase then Parking Eye will invariably rescind the PCN. I would stress though that if a motorist appeals in with proof of shopping Parking Eye can cancel a charge as long as the amount spent ties in with the amount of time a customer has stayed on site. Their appeals team wouldn’t necessarily accept an appeal if a motorist provides a receipt for £1.99 but stayed on site over 6 hours for example. Their appeals team will always use discretion.

I’m more than happy to pass on any copies of receipts you can send through to me to help expedite the process. I look forward to hearing from you. Many thanks.

Kind regards

Good afternoon,

Thankyou for your prompt reply.

Whilst I was not aware that ParkingEye may rescind the parking charge if I prove that I was a genuine shopper, in this instance, I am unable to do so.

This was due to the following reasons:

The first visit between approximately 1230 and 1320 (timings taken from Google location history) was fruitless; we visited 2 outlets on the site (Brantano and Sports Direct) in search of shoes for both of our boys, however were unable to find anything suitable. We also visited Home Bargains, but again left without purchasing due to the children playing up, so we left and returned home (Google location has us arriving home at approximately 1350).

The second visit was a flying visit (approximately 10 minutes) involving a purchase from Pets At Home for dog food which was paid in cash with no receipts being kept. This visit according to Google location history ended at approximately 1530.

So now I find myself in the position that I am unable to prove I was a "genuine shopper" in the sense that I spent money in the outlets on site.

With regards to ParkingEye having checked their records, it is a well documented fact that ANPR technology is not without its faults and can be liable to misreading number plates or indeed completely missing a number plate altogether (http://parking-prankster.blogspot.co.uk/2014/02/how-parking-operators-use-anpr.html)

I believe it is also within your power as ParkingEye's principal to apply your own discretion in this matter and would like to request that you consider doing so.

ParkingEye (PE) provided their evidence pack to you on 16 October 2015. I received a copy of this evidence sent independently to me by PE on 22 October 2015. This is my rebuttal of the evidence they have provided – I shall take each of my original points in order. These were as follows:

1. PE has not correctly captured exit and re-entry by the same vehicle.

2. Unclear, non-compliant and unlawful signage which created no contract.

3. Lack of standing/authority from landowner.

4. Unreasonable/unfair terms.

5. The charge is not a genuine pre-estimate of loss.

1. PE has not correctly captured exit and re-entry by the same vehicle.

PE has not submitted any evidence that the vehicle was parked on site for the whole 3 hours and 6 minutes. They have merely submitted photographs of the front of the vehicle at an arbitrary location at 1228 hrs and the rear of the vehicle at another arbitrary location at 1524 hrs. To prove beyond doubt that the vehicle remained in the car park for the entire period, PE would require supplemental evidence such as photos of the vehicle parked in the same marked bay at various points throughout the period stated. They have not provided this.

They have not stated that they have performed a manual check of other photographic evidence taken during this period as requested, nor have they addressed the points I raise about ANPR accuracy.

2. Unclear, non-compliant and unlawful signage which created no contract.

PE has provided evidence of signage location and format which is dated November and December 2014. As can be seen from the plan that I submitted with my appeal, not all of these signs have survived the interim period and were not present on the date in question, or the date of a subsequent visit to collect evidence to support my appeal. Looking at imagery taken by Google Street View dated May 2015 at least 2 signs that PE has noted on their site plan are missing.

PE have failed to provide evidence of the signs’ legal status in accordance with the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. I reiterate my appeal point that these signs are illegal as they do not comply with extant legislation and they are currently subject to enforcement action by South Kesteven District Council.
 
3. Lack of standing/authority from landowner.

PE state that they “… can confirm that the above site is on private land, is not council owned, and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent).”

The chain of authority at this site is rather convoluted:

a. The landowner is Buckminster Estate (BE).

b. The tenant is the South Yorkshire Pension Authority (SYPA).

c. The manager of the land is Cushman & Wakefield (CW).

This raises the question with whom does PE have a contract to manage the parking on this site?

At each stage it is reasonable to assume that a tenancy agreement or contract is in place which lays out the responsibilities and authorities of the tenant or agent. As PE has not named their principal; it could be any of the three bodies mentioned above. If the principal is not BE, does the principal to PE’s contract have the authority to offer a contract, or indeed the authority to authorise PE to issue claims in their own name? None of these questions are answerable by the statement issued by PE in their evidence. To answer this question, a third party would require sight of the tenancy agreement between BE and SYPA; the contract to manage the land between SYPA and CW; and the contract between PE and their unidentified principal – none of which have been provided.

To attempt to reinforce their right to enforce the alleged contract PE refer to Fairlie v Fenton (1870) LR 5 Ex 169. This case dealt with the question as to whether a cotton broker could sue in his own name upon contracts made by him as broker, ie the middle-man between two contracting parties. If acting as broker, Fairlie v Fenton fails to support PE’s assertion that they can enforce the alleged contract in their own name; it actually supports my case and PE if acting as broker cannot enforce the contract!

If PE are in fact acting as an agent and entering into a contract in their own name they must render themselves “... personally liable on the contract …” (PE’s quote). PE’s signage states “We are not responsible for the car park surface, damage or loss to or from vehicles or general site safety” thereby denying liability. Ergo, they are unable to enforce the contract entered into in their own name by relying on the case law they have quoted.

4. Unreasonable/unfair terms.

5. The charge is not a genuine pre-estimate of loss.

I will deal with appeal points 4 and 5 together as PE seem to have done in their evidence.

PE’s evidence addressing these two points centres around select quotes from ParkingEye Ltd v Beavis and Wardley (2014) a case on which they have relied at all stages throughout. As I am sure you are well aware, and PE acknowledge in their evidence, that this Court of Appeal judgement is subject to an appeal in the Supreme Court. The hearing for this case concluded on 23 July 2015 and a judgment has not yet been forthcoming. It is a possibility that the Court of Appeal judgments could be overturned therefore PE should not rely on these judgements when there is an as yet unclear outcome to the Supreme Court appeal.

My appeal should be heard assuming that any Court of Appeal judgments subject to appeal cannot be relied upon in law or at worst my appeal should be adjourned until judgment has been passed.

Taking into account this rebuttal I again respectfully request you allow my appeal.