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PCN - Southampton Town Quay
Leighsaa
Posts: 21 Forumite
Hi all, I'm new to this forum and would just like some advice please. Apologies if I'm posting this in the wrong place. I have spent the last couple of days reading the stickies and familiarising myself with parking invoices (this is my first one). Received PCN from Parking Eye (PE) on Monday for Southampton Town Quay on 21 June 2014. I don't think I need to post copy of PCN as you will have seen many from PE before. I will appeal in the first instance to PE and I have tried to put together (using other people's very well worded letters) an appeal of my own. Please if you have time could you scan read this and tell me if it is acceptable to send. To be honest I think it would be more suited to POPLA the next stage in the process. Also as PE are likely to reject my appeal on the grounds of 'commercial justification' do you think I have covered this point well enough in my letter. Thank you in advance for any help you can give me. Leighsaa
Parking Eye
ADDRESS
AND ONLINE TO: PE Web address
Wednesday, 9 July 2014
Dear Madam/Sir,
Parking Charge Reference No. XXXXXXXXXXXX – 21 June 2014
I refer to the above invoice for parking. I am the registered keeper of Vehicle XXXXXXX and I wish to challenge this parking charge notice on the following grounds.
1) The speculative parking invoice sent is not a genuine pre-estimate of loss
2) No standing or authority to neither pursue charges nor form contracts with drivers
3) The signage was not compliant with the BPA Code of Practice
4) ANPR Accuracy and breach of the BPA Code of Practice
5) Southampton Associated British Ports Town Quay (short stay) car park has no keeper liability – due to byelaws prevailing. POPLA decision code 6060344057
6) A person with a disability cannot be subject to any detriment relating to any matter to do with their condition.
7) Postal invoice to keeper arrived on the 16th day not compliant with POFA 2012
Specifically, 1) The invoice sent is a not a genuine pre-estimate of loss. There was no damage nor obstruction caused so there can be no loss arising from the incident. Parking Eye notices allege ‘breach of terms/failure to comply’ and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event.
The car park at the time of the alleged breach was less than one third full and so it cannot be said that any impact would have been felt by the business in any case by other users not being able to park, either by Parking Eye or by other businesses in the area surrounding Town Quay.
The charge from Parking Eye as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011 it was ruled that the only amount the operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.
The Office of Fair Trading has stated to the BPA Ltd that a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event. Should Parking Eye fail to uphold my appeal then I will expect to be provided with a full breakdown of the alleged loss.
2) Parking Eye do not own the land mentioned in the Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against Parking Eye which establish that a mere parking agent has neither legal standing nor authority which could impact on visiting drivers. Ref. Parking Eye v Sharma, Case No. 3QT62646 or Parking Eye v Gardam, Case No. 3QT60598.
Under the BPA CoP Section 7, a landowner contract must specifically allow the operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. Should Parking Eye fail to uphold my appeal then I will expect to be provided with a full unredacted copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam (above).
3) The signage was not compliant with the BPA CoP section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Parking Eye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance).
Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not informed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Parking Eye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of the vehicle.
4) ANPR Accuracy and breach of BPA CoP 21.3 This operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association’s Approved Operator Scheme Code of Practice. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.
In addition, I question the entire reliability of the system and should Parking Eye fail to uphold my appeal then I will require that Parking Eye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. (Ref. Parking Eye v Fox-Jones 8 November 2013)
5) Southampton Associated British Ports Town Quay (short stay) car park has no keeper liability due to byelaws prevailing. Specifically ABP Town Quay car park failing to meet the definition of “relevant land” under the Protection of Freedoms Act 2012 (POFA). It is my understanding that Parking Eye is aware of this issue following POPLA decision code 6060344057. Therefore, Parking Eye 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.
Indeed, and as I believe Parking Eye is aware, no keeper liability can apply at all, due to the Associated British Ports’ Southampton Harbour Byelaws 2003, which can be found at XXXXXXXXXXX (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 are covered by bye-laws (statutory control) it clearly falls under 3(c) and is therefore exempt from POFA 2012. For Parking Eye to claim in the ‘PNC’ 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. Further, should Parking Eye fail to uphold my appeal I should expect to be provided with the contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the byelaws cease to apply around Town Quay. If Parking Eye does not 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 Parking Eye has 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 included the Town Quay as shown on page 20.
6) The vehicle was stopped in readiness to visit local attractions but the passenger was feeling unwell due to a severe panic disorder. The pay and display machine would not accept the drivers coinage and therefore, the occupants did not leave the vehicle before the driver was able to drive away from the car park. The actual time parked was negligible and under the Equality Act 2010, a person with a disability cannot be subject to any detriment relating to any matter to do with their condition.
7) The postal invoice – parking charge notice sent to keeper arrived on the 16th day after the alleged ‘breach of terms/failure to comply’ is said to have took place. As Parking Eye alleges ‘keeper liability’ under POFA 2012 and without a windscreen ticket, the postal invoice has to arrive by day 15.
I request that based on the above defence, my appeal is upheld and that the ‘PCN’ sent by Parking Eye is cancelled. However, should you insist on taking the matter further I must inform you that I will also appeal to POPLA on the following grounds and I may claim 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 when I prevail.
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 ground to appeal. I will not be supplying the driver’s details at any stage, as I am under no legal or moral obligation to do so.
As the registered keeper of the vehicle, I enclose a cheque for £5.00 to cover the cost of the parking unwittingly incurred by the driver. An additional amount has been added to cover your costs in having to bring this matter to their attention. Anything above this amount is clearly a penalty. Should you cash this cheque it is on the understanding that it is full and final settlement of the matter and the above charge will be cancelled. Should you decline this offer then please return the cheque in the same envelope as the POPLA verification code you are required to issue.
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 with 35 days either accepting my appeal or providing a POPLA verification code, or if you send any documents asking for additional information outwith your AOS CofP, I will make complaint to POPLA, the BPA (the BPA recently issued guidance to all members to remind them of this fact), the DVLA and the Information Commissioner about your refusal to comply with your industry CofP. I reserve the right to rely on your conduct in this matter in any court proceedings, extant or contemplated, between us. Such communication may also be deemed harassment and pursued accordingly.
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 acknowledgment and final response.
Yours faithfully,
XXXXXXXXXXXX
(Registered Keeper)
Parking Eye
ADDRESS
AND ONLINE TO: PE Web address
Wednesday, 9 July 2014
Dear Madam/Sir,
Parking Charge Reference No. XXXXXXXXXXXX – 21 June 2014
I refer to the above invoice for parking. I am the registered keeper of Vehicle XXXXXXX and I wish to challenge this parking charge notice on the following grounds.
1) The speculative parking invoice sent is not a genuine pre-estimate of loss
2) No standing or authority to neither pursue charges nor form contracts with drivers
3) The signage was not compliant with the BPA Code of Practice
4) ANPR Accuracy and breach of the BPA Code of Practice
5) Southampton Associated British Ports Town Quay (short stay) car park has no keeper liability – due to byelaws prevailing. POPLA decision code 6060344057
6) A person with a disability cannot be subject to any detriment relating to any matter to do with their condition.
7) Postal invoice to keeper arrived on the 16th day not compliant with POFA 2012
Specifically, 1) The invoice sent is a not a genuine pre-estimate of loss. There was no damage nor obstruction caused so there can be no loss arising from the incident. Parking Eye notices allege ‘breach of terms/failure to comply’ and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event.
The car park at the time of the alleged breach was less than one third full and so it cannot be said that any impact would have been felt by the business in any case by other users not being able to park, either by Parking Eye or by other businesses in the area surrounding Town Quay.
The charge from Parking Eye as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011 it was ruled that the only amount the operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.
The Office of Fair Trading has stated to the BPA Ltd that a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event. Should Parking Eye fail to uphold my appeal then I will expect to be provided with a full breakdown of the alleged loss.
2) Parking Eye do not own the land mentioned in the Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against Parking Eye which establish that a mere parking agent has neither legal standing nor authority which could impact on visiting drivers. Ref. Parking Eye v Sharma, Case No. 3QT62646 or Parking Eye v Gardam, Case No. 3QT60598.
Under the BPA CoP Section 7, a landowner contract must specifically allow the operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. Should Parking Eye fail to uphold my appeal then I will expect to be provided with a full unredacted copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam (above).
3) The signage was not compliant with the BPA CoP section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Parking Eye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance).
Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not informed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Parking Eye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of the vehicle.
4) ANPR Accuracy and breach of BPA CoP 21.3 This operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association’s Approved Operator Scheme Code of Practice. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.
In addition, I question the entire reliability of the system and should Parking Eye fail to uphold my appeal then I will require that Parking Eye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. (Ref. Parking Eye v Fox-Jones 8 November 2013)
5) Southampton Associated British Ports Town Quay (short stay) car park has no keeper liability due to byelaws prevailing. Specifically ABP Town Quay car park failing to meet the definition of “relevant land” under the Protection of Freedoms Act 2012 (POFA). It is my understanding that Parking Eye is aware of this issue following POPLA decision code 6060344057. Therefore, Parking Eye 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.
Indeed, and as I believe Parking Eye is aware, no keeper liability can apply at all, due to the Associated British Ports’ Southampton Harbour Byelaws 2003, which can be found at XXXXXXXXXXX (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 are covered by bye-laws (statutory control) it clearly falls under 3(c) and is therefore exempt from POFA 2012. For Parking Eye to claim in the ‘PNC’ 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. Further, should Parking Eye fail to uphold my appeal I should expect to be provided with the contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the byelaws cease to apply around Town Quay. If Parking Eye does not 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 Parking Eye has 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 included the Town Quay as shown on page 20.
6) The vehicle was stopped in readiness to visit local attractions but the passenger was feeling unwell due to a severe panic disorder. The pay and display machine would not accept the drivers coinage and therefore, the occupants did not leave the vehicle before the driver was able to drive away from the car park. The actual time parked was negligible and under the Equality Act 2010, a person with a disability cannot be subject to any detriment relating to any matter to do with their condition.
7) The postal invoice – parking charge notice sent to keeper arrived on the 16th day after the alleged ‘breach of terms/failure to comply’ is said to have took place. As Parking Eye alleges ‘keeper liability’ under POFA 2012 and without a windscreen ticket, the postal invoice has to arrive by day 15.
I request that based on the above defence, my appeal is upheld and that the ‘PCN’ sent by Parking Eye is cancelled. However, should you insist on taking the matter further I must inform you that I will also appeal to POPLA on the following grounds and I may claim 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 when I prevail.
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 ground to appeal. I will not be supplying the driver’s details at any stage, as I am under no legal or moral obligation to do so.
As the registered keeper of the vehicle, I enclose a cheque for £5.00 to cover the cost of the parking unwittingly incurred by the driver. An additional amount has been added to cover your costs in having to bring this matter to their attention. Anything above this amount is clearly a penalty. Should you cash this cheque it is on the understanding that it is full and final settlement of the matter and the above charge will be cancelled. Should you decline this offer then please return the cheque in the same envelope as the POPLA verification code you are required to issue.
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 with 35 days either accepting my appeal or providing a POPLA verification code, or if you send any documents asking for additional information outwith your AOS CofP, I will make complaint to POPLA, the BPA (the BPA recently issued guidance to all members to remind them of this fact), the DVLA and the Information Commissioner about your refusal to comply with your industry CofP. I reserve the right to rely on your conduct in this matter in any court proceedings, extant or contemplated, between us. Such communication may also be deemed harassment and pursued accordingly.
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 acknowledgment and final response.
Yours faithfully,
XXXXXXXXXXXX
(Registered Keeper)
0
Comments
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It is good to see someone has done their homework. As long as you feel confident that you have stayed with all the points C-M made in her template appeal , this should be ok.
I personally would omit these paragraphsPlease 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 ground to appeal. I will not be supplying the driver’s details at any stage, as I am under no legal or moral obligation to do so.
As the registered keeper of the vehicle, I enclose a cheque for £5.00 to cover the cost of the parking unwittingly incurred by the driver. An additional amount has been added to cover your costs in having to bring this matter to their attention. Anything above this amount is clearly a penalty. Should you cash this cheque it is on the understanding that it is full and final settlement of the matter and the above charge will be cancelled. Should you decline this offer then please return the cheque in the same envelope as the POPLA verification code you are required to issue.
You have certainly covered a lot of points and if the appeal gets rejected, you have plenty to build on for POPLA.Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.0 -
letetrs like the template letter in the NEWBIES sticky thread are fine , but your offer wont be accepted
some more reading for you
https://forums.moneysavingexpert.com/discussion/4995312
and https://forums.moneysavingexpert.com/discussion/5008523
and especially https://forums.moneysavingexpert.com/discussion/50027920 -
Thank you Dee and Redx so much for your response, it's really appreciated. Yes, I did do my homework
It is such a huge subject area. Thank you for the extra reading too Redx, that will certainly help to fine tune my appeal ready for POPLA. Dee I agree on removing those two paragraphs - the first is probably not necessary to mention and as for the second, from what I've read they wouldn't accept an offer at this stage anyway.
So, I got home this evening to a reminder PCN in the post (only two days after receiving the original)! I've got until the 12 July to pay the reduced rate - they certainly didn't give me much notice if I was going to pay (I guess that is to build on the urgency of the matter). Anyway, I'll get my letter edited/printed and sent off tomorrow and I'll obtain a free certificate of postage.
Do you think it will be necessary for me to need to return to Southampton to collect evidence - photos etc. Only I live 227 miles away in Manchester. Awful, how an invoice like this can cause so much distress, I feel like I've broken the law or something. The camera's recorded my vehicle at the car park for an hour and 40 minutes (yet I know that when it gets to the POPLA stage they will not be interested in matters of mitigation.
Anyway, I suppose I've got more important things to worry about then this invoice like I've just noticed my cat has a swollen paw - trip to the vets before work in the morning. Leighsaa0 -
There is absolutely no need to travel to Southampton for photos of the signs. And glad you have this in perspective. Cat's paws are far more important.Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.0
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There may be a forum member who lives somewhere around Southampton who could take any photos you require. I can't immediately bring any regular to mind, but I'll leave this post up so should someone suitably located see this, they can make contact with you.
That said, photos are rarely showstoppers - they just add to the mix.
See if we get any 'bites' on this, but don't worry if we don't.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Quite right about prioritising cats! Leighsaa if you send a pm to Benefit Master who won his case at Town Quay maybe he has pics of the signs there.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Okay thanks Dee I'm quite glad to hear that as it's such a long drive - not that I'd mind if the trip was for pleasure necessarily.
Thanks Umkomaas - I won't worry too much about photo's for now then as I guess it's only a small part of the evidence.
Coupon-mad - it's great to hear that Benefit Master won his case at Town Quay especially as PE advertise a good success rate when taking people to court. I will certainly get in touch with BM to enquire re: pics of signs.
I'm learning something new as I read through the posts in this forum. I think I'll actually quite enjoy building on my appeal letter for when it gets to the POPLA stage - it's rather like doing research in preparation for an assignment.0 -
Coupon-mad wrote: »Quite right about prioritising cats! Leighsaa if you send a pm to Benefit Master who won his case at Town Quay maybe he has pics of the signs there.
CM has a better memory than me!
Do as advised, BM has always been a very helpful (and trusted) poster.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Hi all, just a quick update - following my appeal to PE sent on the 10.07.14 I received a letter from PE yesterday dated 23.07.14. It thanked me for my correspondence relating to the parking charge and said that they were currently reviewing the matter and would contact me shortly. I don't know what to make of that, they're obviously preparing a very long rejection letter eeek! Anyway, I will keep you guys posted Leighsaa0
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Wow you actually got an acknowledgement. That makes a change.
This should be standard procedure, but sadly isn't for many PPCs. They have up to 35 days to make a decision to reject or cancel.
It doesn't necessarily mean anything bad, but you probably will get a rejection!Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.0
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