Parking Eye PCN challenge

scoop70

Hi guys,

Firstly sorry that I haven't really taken the time I would have liked to research this more myself. I arrived back from a trip to have the Parking Charge Notice letter waiting for me and straight into a week of 14 hour shifts in work, which didn't leave me much time. Due to this I just used the template appeal letter from the Parking Cowboys website as I didn't have time to research it any more thoroughly before the 28 day deadline was over.

I parked in Rheidol Retail Park in Aberystwyth and received a Parking Charge Notice for £85 for having overstayed the 2 hour limit, having not noticed any signs. However, the signage they put up is not clearly visible on entering the car park, especially the section I was driving into, and also any signs I saw after returning to inspect the place since getting my ticket are not clearly visible from inside the car. Add to this that the signs closest to the ground are over 6 1/2 feet off the ground and in Welsh (which I can't read) and the English ones above this are about 8 feet off the ground so it's impossible to read any of the details on them as the print is too small.

I have since received a reply from Parking Eye which seems like a fairly standard one trying to intimidate me again. This is what it says:

Dear Sir/Madam,

Thank you for your correspondence in relation to the Parking Charge incurred on [date and time], at Rheidol Retail Park car park.

We are writing to advise you that your recent appeal has been unsuccessful. This is because you have not provided sufficient evidence to show that you did not break the terms and conditions on the signage.

In relation to your claim that our charges are disproportionate and there fore not a genuine pre-estimate of loss, we refer you to the below cases that indicate that the Parking Charge amount is fair and reasonable. Furthermore we have calculated this sum as a genuine pre-estimate of loss as we incur significant costs in managing this car park to ensure motorists comply with the stated terms and conditions and to follow up any breaches of these. These costs include (but are not restricted to);

• Erection and Maintenance of the site signage
• Installation, monitoring and maintenance of the Automatic Number Plate Recognition systems.
• Employment of office-based administrative staff.
• Membership and other fees required to manage the business effectively including those paid to the BPA, DVLA and ICO.
• General costs inlcuding stationary, postage etc.

This sum, and the calculations which have been made in setting it, has been approved and agreed by the landowner (or the landowner's agent). This sum was also clearly laid out on the signage at the site, and by remaining on site, we contend that the motorist has accepted all of the prevailing terms and conditions of that contract, including the charges for breach of contract.

We also note that a number of your queries are of a generic nature, a number of which we have seen before. Please see ParkingEye's answers to Frequently Asked Questions below.

FAQ's

How was a contract formed with the driver?
The Parking Charges issued for and on behalf of the landowner are levied on the basis of a contract with the motorist, set out via the signage at the site. The signage sets out the conditions under which a motorist is authorised to park, be that by payment of the appropriate paid parking tariff or by parking within a limited stay period or similar, and that a Parking Charge will be payable, if the conditions are not met. We ensure signage is ample, clear visible and in line with the BPA (British Parking Association) Code of Practice to ensure the motorist is bound by them when they enter and remain at a client site, so that all users of the site are obliged to follow these rules.

A number of cases, such as Vine v London Borough of Waltham Forest [2000], prove particularly useful in respect to the creation of a contract with the driver. This is again reiterated in Section 7.1 of the Department of Transport's guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012. This provides strong evidence that if the signage and terms and conditions are sufficient it will be considered that the driver had entered into a contract tp park on the land. Also see Combined Parking Solutions v Dorrington (2012), Combined Parking Solutions v De Brunner (2007), Combined Parking Solutions v Blackburn (2007) and Combined Parking Solutions v Rees (2007).

Is the Parking Charge enforceable, is it a penalty?
ParkingEye does not issue or collect Penalty Charges, fines or Excess Charges which are only relevant to on-street or civil enforcement area and are enforced by police/traffic wardens or council civil enforcement officers under the Traffic Management Act 2004 or the Road Traffic Acts. This legislation is not applicable on private land. We can confirm, however, that ParkingEye has the authority to issue and enforce Parking Charge Notices, for contractual breach.

Further evidence, that ParkingEye's Parking Charges cannot be viewed as penalties, can be found in Mayhook v National Car Parks and Fuller [2012], Combined Parking Solutions v Mr Stephen James Thomas [2008], Combined Parking Solutions v De Brunner [2007] and, in a case tested at High Court and the Court of Appeal (ParkingEye v Somerfield Stores[2011]) and more recently ParkingEye v Mr Kevin Shelley [2013] where it was found that ParkingEye's Parking Charges were not a penalty and were upheld in court. Furthermore the judge ruled that there was a commercial justification for them.

Is the Parking Charge fair and reasonable?
ParkingEye firmly believes that its Parking Charges are fair anf reasonable, ParkingEye's Parking Charges are in line with the British Parking Association guidelines, and have been tested at the court of Appeal. A charge of £75 was found by HHJ Hegarty QC in the case of ParkingEye v Somerfield Stores (2011) to be a reasonable charge, by which the motorist (when exceeding the specified time limit) would be contractually bound. See also Combined Parking Solutions v Dorrington (2012) and Combined Parking Solutions v Blackburn (2007)

How can the charge be enforceable if there is a reduction for early payment?
The offer to reduce the charge for the first 14 days is not indicative of the fact that it should be considered a penalty. As a matter of practicality there are many commercial situations where a discount is offered for the early settlement of a contractual claim. HHJ Hegarty QC in the case of ParkingEye v Somerfield Stores (2011) stated that this was the case.

Does ParkingEye have the authority to issue Parking Charges?
ParkingEye can confirm that it only operates on sites that are situated on private land, are not council owned and that ParkingEye has written authority to operate and issue Parking Charge Notices on all of its sites from the landowner.

It must also be noted that any person who makes a contract in his own name without discussing the existence of a principal, or who, though disclosing the factthat he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton 91870) LR 5 Exch 169). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract.

I wasn't the driver, therefore I will not be paying the Parking Charge?
Paragraph 9(2)(b) of schedule 4 of the Protection of Freedoms Act 2012, states that the operator must inform the registered keeper that the driver of the motor vehicle is required to pay the parking charge in full. It also notes that, as the operator does not know the driver's name or current postal address, the registered keeper, if they were not the driver at the time, should inform the operator of the name and current postal address of the driver and pass the notice to them.

The Act also warns that if, after 29 days, the parking charge has not been paid in full and the operator does not know both the name and current address of the driver, they have the right to recover any unpaid part of the parking charge from the registered keeper. This warning is given under Paragraph 9(2)(f) of schedule 4 of the Protection of Freedoms Act 2012 and is subject to the operator complying with the applicable conditions under Schedule 4 of that Act (which ParkingEye firmly believe it has).

Is Vehicle Control Services v The Commissioners for her Majesty's Revenue & Customs applicable?
The Court of Appeal reversed the decision in March 2013. In this case HM Revenue & Customs was claiming that VCS had to account for VAT as they had no interest in the land and as such were acting as agents. HM Revenue & Customs therefore argued that the retention of Parking Charge Notices was payment for services. However, this was found not to be the case in this ruling. This notwithstanding the VAT treatment of Parking Charge Notices remains the same, this was decided in the Tribunal Case, Bristol City Council LON/99/261 and is enshrined within HM Revenue & Customs VAT brief 57. ParkingEye accounts for VAT to HM Revenue & Customs on all its Parking Charge Revenue. However the Parking Charge Notice itself remains outside the scope of VAT. Therefore any VAT ruling in respect to VCS does not currently apply to ParkingEye.

ParkingEye must accept or reject my appeal within 35 days?
The clause to which this argument refers to has been amended and has been made accessible to the general public in the latest British Parking Association Code of Practice (June 2013).


Your Appeal has therefore been unsuccessful; however, as a gesture of goodwill, we have extended the discount period for a further 14 days from the date of this correspondence.

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. The POPLA appeals form and contact information can be found enclosed. See also [popla website]
• 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.

A payment can be made by telephoning our offices on 0844 247 2983 or by visiting [parkingeye webite] or by posting a cheque or postal order to ParkingEye, PO Box 565, Chorley, PR6 6HT.

Your faithfully

ParkingEye Team.



They also included the POPLA forms and reference number. Sorry this is so long winded, but there are quite a few problems with this that I can see, as it is clearly a standard reply as they have flat out failed to answer the points actually raised in my letter I sent them.

The first one is that they have said my appeal was unsuccessful when I quite clearly said in my letter that it was NOT an appeal but a challenge.

They did not cover the issue of a civil trespass.

They have not sent me a complete version of the terms and conditions of that contract to which they say the driver agreed to.

I don't feel they have made it clear as to whether the charge is based on damages for breach of contract or a contractual sum, and also they have not provided a complete breakdown of the actual loss.

They have not provided information about who is the actual creditor making this parking charge demand, only ParkingEye.

They have not provided me with the name and address of the landowner so I am unable to send them copies of my letters.

They did not send me a copy of the contract with the landowner, or explained if the landowner has any involvement with the management of parking at the site.

They did not provide information about whether or not they held any other personal data they hold relating to me other than their photographs and my address from the DVLA.

They did not supply a diagram of the site showing sign locations nor any photographs of the signs.

They did not provide the name and address of their solicitors.

All of these things are in blatant disregard to the points (i) and (iv) below in the letter I sent them saying:

To avoid doubt, please do not do any of the following:
(i) Send any further correspondence or documents to me or try to communicate with me in any way except to address in writing the specific points I have raised in this letter.
(ii) Send me any document purporting to be from the county court unless it is a valid claim form duly issued.
(iii) Write to me threatening to send bailiffs to my address without first issuing a court claim form and obtaining judgment.
(iv) Send me any standard letters from your company or debt collectors.

It might also be worth mentioning that I entered the car park at 6:30 pm and the car park is locked at 8 pm which I didn't notice either. This meant I had to mount the pavement to exit but also means that even if I have come back within the 2 hour limit I would've been unable to leave normally. Also, though it means I was definitely not costing them any money after the time limit was exceeded as nobody could enter the car park anyway. I didn't mention this in my first letter as I thought it might possibly land me in more trouble so I left it out.

I'm unsure about how to proceed from here other than sending them another letter with the points I mentioned above and also appealing to POPLA. Should i mention the fact I was locked in or not? Also their reply letter is dated 11th September so the deadline they give for the reduced amount is the 25th September. Is this also the deadline for me to have submitted an appeal to POPLA?

Sorry again for the huge post and my lack of time to do more research and thanks in advance for any help you can give me.

trisontana

They won't learn will they. The following garbage from them:-

• Erection and Maintenance of the site signage
• Installation, monitoring and maintenance of the Automatic Number Plate Recognition systems.
• Employment of office-based administrative staff.
• Membership and other fees required to manage the business effectively including those paid to the BPA, DVLA and ICO.
• General costs including stationary, postage etc.

Has just been shot down in flames yet again by a POPLA adjudicator.

Stroma

Yes those are tax deductible costs associated with running their business, and cannot be losses. They would have incurred those costs even if you hadn't parked there. Also only the landowner/retailer/service provider can claim losses IMO as parking eye are just agents there can be no losses they can claim

Umkomaas

You need to crack on with your POPLA appeal, there is no useful purpose in any further correspondence with PE. All your efforts now should be POPLA-focused.

There have been other cases on here at Rheidol Retail Park:

http://forums.moneysavingexpert.com/showpost.php?p=62498475&postcount=8

http://forums.moneysavingexpert.com/showpost.php?p=60825417&postcount=17

are a couple in point - you can learn much from these.

Also have a good read of the POPLA Decisions sticky (especially the most recent posts, say from the past 4-5 weeks) here:

https://forums.moneysavingexpert.com/discussion/4488337

HTH

scoop70

Hi guys, Sorry for the slow reply. Thanks very much for the help, it's much appreciated. Got my POPLA appeal in, now just waiting on the outcome.

Cheers!

Guys_Dad

Did you major on the liquidated damages and no genuine pre-estimate of costs?????

Please post what you said about that as it is not too late to add points.

northernbella

Am still in the dark...... Do we have to pay Parking Eye fines or NOT. Mine has been going on for over a year now. I now have a Judgement for Claimant ( in default) asking for £165! Can you help?

Stroma

Why are you posting on a random thread about this??? Create your own to discuss this please

Coupon-mad

northernbella wrote: »

Am still in the dark...... Do we have to pay Parking Eye fines or NOT. Mine has been going on for over a year now. I now have a Judgement for Claimant ( in default) asking for £165! Can you help?

There's no point even starting a thread if you've actually IGNORED a court claim! Oh dear, where have you been, PE have been taking people to court this year and some cases have been won, some lost - and you ignored the court papers so you just LOST.

Not the recommended approach. No-one EVER said to ignore court papers, not even when the advice was to ignore the usual letter chain!