Parking Eye Appeal

My appeal to ParkingEye won without having to go to POPLA.

I am posting this because I hope people will find the wording less legalistic than other examples. Some of it is particular to my case i.e. the notice was too late, but most of it is general and will apply in every case.

1. Under the Protection of Freedoms Act 2012 (PoF Act) Keeper Liability cannot be invoked: Town Quay is not relevant land as Byelaws apply to it.
Section 3 of The Protection of Freedoms Act 2012 states:

‘3(1) In this Schedule ‘relevant land’ means any land (including land above or below ground level) other than

(a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b) a parking place which is provided or controlled by a traffic authority;
(c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.’

Town Quay together with other port land in this area is covered by Associated British Ports Southampton Harbour Byelaws 2003 (statutory control) http://www.southamptonvts.co.uk/Port_Information/Regulations/Byelaws/
Therefore, under 3(c) of the Act, Town Quay does not come within the definition of ‘relevant land’ specified in the PoF Act 2012. This was confirmed by the POPLA decision dated 6th March 2014 (ref. 6060344057). Parking Eye, in full knowledge of this fact, has obtained my details fraudulently from the DVLA. The company is not legally entitled to pursue the keeper for a charge relating to this land, because Town Quay is not defined as ‘relevant land’ as required by the law.

2. The Parking Charge Notice (PCN) was not received within the time specified in the Protection of Freedoms Act 2012.
Section 9(4) of the PoF Act states:
‘(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’

Section 9(5) of the PoF Act states the period within which the notice must be given:
‘(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.’
The notice is dated 06/09/2014 and was received by the keeper on the 11/09/2014. Neither date is within the time specified in Section 9(5) of the Act for the event which is alleged to have occurred on the 17/08/2014. Also, this was only nine days before the date expired, shown on the PCN as 20/09/2014, for payment of the discounted parking charge. This does not comply with the 14 day period after delivery of the Notice to Keeper to pay at the discounted rate as specified in the BPA Code of Practice.

3. The Parking Charge Notice that was sent is for an amount which is unreasonable and is not a genuine pre-estimate of loss incurred.
According to the Unfair Consumer Contract Regulations 1999, parking charges on private land must not exceed the cost to the landowner during the period the motorist is parked there. In this case, the £100 charge you are asking for far exceeds the cost to the landowner of £2.20. A fair and reasonable charge should reflect the actual loss from the unpaid parking charge. However, the amount in the Parking Charge Notice is punitive which cannot be justified and is a penalty which Parking Eye is not entitled to levy.
The BPA Code of Practice states at paragraph 19.5 that a charge must represent a genuine pre-estimate of loss for a breach of contract. The Code goes on to state at 19.6 ‘If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.’ There are POPLA decisions and case law stating that punitive charges are not justified. Indeed, a recent decision concerning a parking charge at this very location was not accepted. The Assessor, Marina Kapour, found that the ‘… the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.’
It has been established that the aim of damages is to be compensatory rather than punitive. The aim being to put the parties in the position they would have been had the contract been performed. On this basis, the amount in the PCN is not a genuine pre-estimate of loss and does not comply with the law or the industry Code of Practice.

4. The signage is not compliant with the British Parking Authority (BPA) Code of Practice so there was no valid contract formed between Parking Eye and the driver.

The signage at the car park failed to comply with the BPA Code of Practice section 18 and appendix B. The signs fail to properly inform the driver of the terms and warn of any consequences for breach. The sign at the entrance to Town Quay fails to establish the elements of a contract (consideration/offer and acceptance). In breach of Appendix B (Mandatory Entrance Signs), Parking Eye does not display signage which could be readable at eye level, for a driver in moving traffic on arrival.

A contract could only be formed at the entrance to the premises, prior to parking (ANPR cameras are located on the access road to the quay, meaning that the car details are recorded before any parking is available and this is some 250 metres before the main public parking area is accessed at the end of the quay).

The sign at the entrance to Town Quay is at least 3 metres from the road surface above two other signs (see Appendix 1). It is not at eye-level for a driver entering the quay. This is also an area which is busy with pedestrians, cyclists and oncoming vehicular traffic. The driver’s attention is fully employed negotiating this area rather than reading this defective signage. Furthermore, the sign does not adequately inform the motorist that number plate recognition is in operation. A CCTV symbol and wording on the same sign is so small that it can only be read by standing directly under the sign looking upwards. This does not comply with BPA Code of Practice which states that:
‘Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.’

Parking Eye signage does not adequately inform the driver of this.