Southampton Leisure World POPLA

ParkingChamp

Hello,

I am currently in the POPLA stage of appealing against a PCN handed to me by the infamous Parking Eye.

I posted my first appeal to PE based on what was written in the newbie thread. PE rejected my appeal as there wasn't sufficient evidence to support my appeal.

I entered the car park and just sat in the car with my girlfriend whilst we watched trailers trying to decide which movie to see. In the end we decided to do something else so we left. This car park used to be free so I had no idea we were being watched by PE. I did not take notice of the signs as I never left my car, and I dont tend to read fine print signs whilst driving around.

I found others who have had similar trouble regarding parking this area. One such case is from BenefitMaster who has found a Southampton Bylaw which is very useful. I'm wondering if this alone can win the POPLA stage for me? Link: (forums.moneysavingexpert.com/showthread.php?t=4995553)

Another user also had success:
(forums.moneysavingexpert.com/showthread.php?t=4985403&highlight=)

What do you guys think I should do? Is it fine to move forward with this as my appeal?

Thanks for any help!

Coupon-mad

Sorry you got no replies - I have just skim-read back to when I went on holiday and found this thread! I think unless 'your' car park is in the boundary of the Harbour then the byelaws will not apply. Is it?

I would send a full POPLA appeal, the usual one for Parking Eye which quotes the POPLA decision by Chris Adamson. It's in the newbies thread post #3, 'How to win at POPLA'.

Post your adapted version of that here, for checking, if you like.

Dee140157

According to Benefit Master

Leisure World is on the Docks, so the bylaws apply

Therefore the byelaws do apply and there is not registered keeper liability.

Whether you want to risk an appeal on one point alone is entirely up to you. It is not something we recommend and this is parking eye who is very litigious. If you want to just her rid of it, use all the generic appeal points as well as this byelaw issue.

If however you feel up for a fight, then you could appeal on the one point alone. But it is a riskier strategy. But if you lose and go to court, then law should triumph supposed contractual charge or whatever reason they are giving.

ParkingChamp

I just wanted to say thanks to everyone that respond and gave me advice on my situation. I received a letter from POPLA about a week ago saying that the charge has been dropped. I don't think PE even bothered submitting evidence against me.

Thanks!

ParkingChamp

Dear Sir/Madam,
RE: POPLA

Parking Charge Notice (PCN):
Vehicle Reg:
Date of Issue:
Location:
Company in question: ParkingEye

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:

In Summary

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) Flawed landowner contract
4) The signage was not compliant with the BPA Code of Practice
5) ANPR Accuracy and breach of the BPA Code of Practice
6) Southampton Leisure World car park has no keeper liability - due to byelaws prevailing. POPLA decision code 6060344057

Specifically:-

1) The Invoice sent is not a genuine pre-estimate of loss.
There was no damage nor obstruction caused so there can be no loss arising from the incident. ParkingEye 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 half 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 ParkingEye or by other businesses in the area surrounding Leisure World.

This charge from ParkingEye as a third party business agent is an unenforceable penalty. In ParkingEye 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.

I have no doubt that ParkingEye will respond claiming to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye PCN, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of the car park management services is commercially justified.
''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that 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.''

2) ParkingEye do not own the land mentioned in their 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 ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.
ParkingEye v Sharma, Case No. 3QT62646
ParkingEye v Gardam, Case No.3QT60598

3) 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. I require ParkingEye to produce a 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).

If ParkingEye are able to 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that ParkingEye witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on!

4) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver.

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye 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 formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival.




5) ANPR Accuracy and breach of the BPA Code of Practice 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. I require that ParkingEye 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 ParkingEye v Fox-Jones 08/11/2013)

6) Southampton Leisure World car park has no keeper liability - due to byelaws prevailing.
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 Leisure World 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 Leisure World and the surrounding port is covered by byelaws (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 byelaws cease to apply around Leisure World.


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 Leisure World car park as shown on page 20.

It is my understanding that ParkingEye are aware of this issue following POPLA decision code 6060344057.

Therefore I request that based on the above defence, my appeal is upheld and for POPLA to instruct ParkingEye to cancel the ‘PCN’.


Yours faithfully,

(Register Keeper)

ParkingChamp

I hope the above helps!

Coupon-mad

Well done - PE always give up when they see that sort of appeal!

Samus123

Hi, I'm a newbie so please forgive me if I do something wrong.
I recently got a pcn from pe and then a reminder about a week later. I parked in the grosvenor casino car park but used odeon cinema. I did not enter my reg into their device as I was under the impression I didn't have to past 6pm.
Anyway, I obtained a confirmation from odeon of me using their service and used it as part of my appeal to have the notice upheld. As I know people who have done the same and have been successful in their claim.
I then received a letter from pe saying it had been rejected as I didn't have sufficient evidence to support my claim.
Today I found out that the casino car park is separate from the cinema car park! This was news to me. Hence why I think my claim got refused. I have also been back to the car park since and it is not very clear about what you should do and the signage does not exactly stand out.
The casino do not charge for parking but require you to enter your reg into their machine. Odeon car park do have pay machines but if using the cinema it's a reg machine in their foyer.
What grounds do I have to appeal based on what's happened to me? Can I use the above appeal?
Hopefully this makes sense. Thanks!

Coupon-mad

Samus123 wrote: »

Hi, I'm a newbie so please forgive me if I do something wrong.
I recently got a pcn from pe and then a reminder about a week later. I parked in the grosvenor casino car park but used odeon cinema. I did not enter my reg into their device as I was under the impression I didn't have to past 6pm.
Anyway, I obtained a confirmation from odeon of me using their service and used it as part of my appeal to have the notice upheld. As I know people who have done the same and have been successful in their claim.
I then received a letter from pe saying it had been rejected as I didn't have sufficient evidence to support my claim.
Today I found out that the casino car park is separate from the cinema car park! This was news to me. Hence why I think my claim got refused. I have also been back to the car park since and it is not very clear about what you should do and the signage does not exactly stand out.
The casino do not charge for parking but require you to enter your reg into their machine. Odeon car park do have pay machines but if using the cinema it's a reg machine in their foyer.
What grounds do I have to appeal based on what's happened to me? Can I use the above appeal?
Hopefully this makes sense. Thanks!

Clicky links, read BOTH, watch this Guide first: New To The Forum?

Private Parking Ticket FAQs Thread

then use the 'Forum Jump' (bottom right of any page click 'GO') to get around and to page one. You are posting on (hijacking) someone's thread right now which isn't allowed on this forum.