Southampton Town Quay POPLA Appeal

BenefitMaster

As there seem to be a few people arguing with PE at Town Quay and the port area in general, where is the anonymised text of my unsuccessful appeal to them, and my successful appeal to POPLA against their PCN

Parking Eye Ltd
40 Eaton Avenue
Buckshaw Village
Chorley
PR7 7NA

BY FAX TO: 01772 450979

2 January 2014

Dear Sirs

PARKING CHARGE No: XXXXXX/YYYYYY – 17 December 2013

I refer to the above invoice for parking. I wish to challenge this PCN on the grounds that Keeper Liability cannot be relied upon at Town Quay.

Town Quay, Southampton fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the you to pursue this matter with myself (the registered keeper).You have issued a defective Notice citing an Act which does not apply at this particular site, to attempt to claim an unenforceable charge from the keeper (myself).

Indeed, and as you are already fully aware, no keeper liability can apply at all, due to the Associated British Ports' Southampton Harbour Byelaws 2003, which can be found at http://www.southamptonvts.co.uk/Port_Information/Regulations/Byelaws/ (the byelaws), taking precedence and rendering this land outwith POFA and outwith 'registered keeper liability'. I refer you to the map at page 20 of the byelaws, evidencing that Town Quay is an area to which the byelaws apply.

POFA 2012 is quite clear on this:

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.

As Town Quay and the surrounding port is covered by bye-laws (statutory control) it clearly falls under 3(c) and is therefore exempt from POFA 2012.

For your to claim in your standard letters that you have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Byelaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. If you contend otherwise then I expect you forthwith to provide me with contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply around Town Quay. If you fail to supply this information I will ask Southampton City, and Lancashire, Trading Standards to investigate your conduct and prosecute you.

The byelaws make it very clear (at byelaw 39) that the penalties for parking on the land designated is solely in the gift of the Criminal Courts and as such you have no standing whatsoever to enforce civil parking charges or parking systems. Additionally, the byelaws also make utterly transparent that the Port of Southampton to which they apply includes the Town Quay as shown on page 20.

If you do reject the challenge and insist upon taking the matter further I inform you that I will seek to recover my expenses from you. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses, legal fees, etc. By continuing to pursue me you irrevocably agree to pay these costs (which I estimate will be £250) when I prevail. In the unlikely event I am unsuccessful at POPLA, I also reserve my right to Equitable Set Off against sums currently owed to me by ParkingEye, amounting to some £622 as of today's date.

Please note that nothing in my appeal prevents you from seeking to pursue the driver of the vehicle, though s/he is likely to have similar grounds to appeal. I will not be supplying the drivers details at any stage, as I am under no legal or moral obligation to do so.

This will be my only communication with you in regard to this appeal. This matter is not exceptional, and you are fully conversant with the legal position. Accordingly if you do not respond within 35 days either accepting my appeal or providing a POPLA code, or if you send any documents asking for additional information outwith your AOS Code of Practise, I will make complaint to POPLA, the BPA, the DVLA and the Information Commissioner about your refusal to comply with your industry code of practise. I reserve the right to rely on your conduct in this matter in any court proceedings, extant or contemplated, between us.

A copy of this correspondence will be supplied to ABP, and they will be named as first defendant in any proceedings I contemplate on this matter.

I await your acknowledgement and final response.

Yours faithfully

BikerPaul
Registered Keeper

BenefitMaster

Town Quay, Southampton fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the Operator to pursue this matter with myself (the registered keeper).

The Operator has issued a defective Notice citing an Act which does not apply at this particular site, to attempt to claim an unenforceable charge from the keeper (myself). No keeper liability is likely to apply at all, due to the Associated British Ports' Southampton Harbour Byelaws 2003, which are attached (the byelaws), taking precedence and rendering this land outwith POFA and outwith 'registered keeper liability'. I refer you to Schedule 4 section 3(1)(c) of the Protection of Freedoms Act, and Byelaw 39. I also refer you to the map at page 20 of the byelaws, evidencing that Town Quay is an area to which the byelaws apply.

Schedule 4 of the POFA is quite clear on this:

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.

As Town Quay and the surrounding port is covered by bye-laws (statutory control) it clearly falls under 3(c) and is therefore exempt from POFA 2012.

For The Operator to claim in their standard letters that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Byelaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. If they contend otherwise then I expect them to provide POPLA with contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply around Town Quay.

The byelaws make it very clear that the penalties for parking on the land designated is solely in the gift of the Criminal Courts and as such the operator have no standing whatsoever to enforce civil parking charges or parking systems. Additionally, the byelaws also make clear that the Port of Southampton to which they apply includes the Town Quay as shown on page 20.

A copy of the byelaws will be uploaded shortly.

Please note that nothing in my appeal prevents the operator from seeking to pursue the driver of the vehicle, though s/he is likely to have similar grounds to appeal. I will not be supplying the drivers details at any stage, as I am under no legal or moral obligation to do so.

Accordingly, I expect POPLA to take notice that the land in question is subject to Statutory Control and that as a result any notice to Keeper seeking to enforce Keeper Liability is invalid, and a nullity ab initio, and to cancel this AND ALL OTHER notices to keeper issued for this site.

BenefitMaster

Hope that's of assistance, people. :-)

And for the record, the fact that Parking Eye are continuing to claim Keeper Liability when they are fully aware that this is not relevant Land means they commit the offence of Fraud by False Representation, contrary to section 2 of the Fraud Act 2006. It is only a matter of time until they are prosecuted for this conduct.

That, MSE, is why I call Parking Eye fraudsters, because it's provable fact.

Coupon-mad

Did you proceed with your case against them for costs or is that on the back burner for now? Or can't you comment on that?!

BenefitMaster

Coupon-mad wrote: »

Did you proceed with your case against them for costs or is that on the back burner for now? Or can't you comment on that?!

The costs case is live for the first ticket, and is going to Small Claims Arbitration.

Once I have that resolved, I will ask the arbitrator to put the other two to PE, and see what is said. If they agree, game over for them at Town Quay, because a journalist is already interested.

Umkomaas

This is almost bringing a tear to my eye for poor old PE. :rotfl:

bazster

BikerPaul over on PePiPoo already got a successful PoPLA adjudication on "not relevant land" at this site:

http://forums.pepipoo.com/index.php?showtopic=71684&view=findpost&p=934449

bod1467

I think you'll find BP and BM are one and the same.

The_Deep

If this is so, then surely all monies obtained by citing POFA must be refunded. I take it that Trading Standards are on board?

trisontana

Don't hold your breath over refunds. PE have been found to have broken planning permission on at least two sites they "manage" for Aldi, The store in Dunstable had the condition that anyone could park there, not just Aldi's customers. Even when PE admitted that they had been ticketing non-customers they are refusing to refund any money paid over to them.

BenefitMaster

bod1467 wrote: »

I think you'll find BP and BM are one and the same.

Indeed So.