Unaurthorized use of bus and taxi dropoff/pick up - Minster Baywatch!!!

gratuitous

I was wondering how people were getting on fighting this outrageous scam ... I received same letter from Minster Baywatch on Saturday relating to the previous Sunday afternoon (when the college was actually closed but for an external event). The driver merely took the wrong turn into the car park.


I would love to contest it, but to be honest, I am reading conflicting information and I have yet to discover if anyone has won their case against Minster Baywatch.


Should I just pay up ? I would still complain bitterly to Tourist Board (visitor to area), College, etc etc


If I did appeal, the advice is to use the template in the sticky ? I'm assuming this one ?

Date


Dear Sirs

Re: PCN No. ....................

I challenge this 'PCN' as keeper of the car, on these main grounds:

a). The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is extravagant and unconscionable when compared to local parking charges issued by the Council so cannot be justified.
b). As keeper I believe that the signs were not seen, the wording is ambiguous and the predominant purpose of your business model is to deter. ......


People have also recommended I pay at least the £30 but still appeal ?




Any advice very gratefully received.

The_Slithy_Tove

gratuitous wrote: »

I was wondering how people were getting on fighting this outrageous scam ... I received same letter from Minster Baywatch on Saturday relating to the previous Sunday afternoon (when the college was actually closed but for an external event). I merely took the wrong turn into the car park.

I would love to contest it, but to be honest, I am reading conflicting information and I have yet to discover if anyone has won their case against Minster Baywatch.

Should I just pay up ? I would still complain bitterly to Tourist Board (visitor to area), College, etc etc

1. Please start your own thread rather than hijacking someone else's. Otherwise it becomes unclear what advice is aimed at who.
2. !!!!!!, why are you even considering paying a penny when you are obviously clear that this is a fake charge with zero merit? Do the same as this thread, including complaining to the DVLA.

bazster

The only way anyone has ever lost against Minster Baywatch is through being dumb enough to simply pay.

Marktheshark

I would make it a bit clearer this is not a "parking" event so POFA does not apply and in any case the driver decided to reject the contract offer which is only displayed within the boundary and leave immediately without "parking" by not stopping and entering and leaving the lane immediately.

gratuitous

Thanks, Marktheshark. I was struggling with the template for that very reason. I was just going to keep things simple for now - on the basis that they will reject my first letter in any case. I will just point out that the 'Protection of Freedom Act 2012 - schedule 4' under which they now require me to pay the money, actually relates to 'Recovery of unpaid parking charges'. I think I will simply reject the charge on the basis that at no point was the car parked at the stated location - which is the absolute truth.

bazster

gratuitous wrote: »

Thanks, Marktheshark. I was struggling with the template for that very reason. I was just going to keep things simple for now - on the basis that they will reject my first letter in any case. I will just point out that the 'Protection of Freedom Act 2012 - schedule 4' under which they now require me to pay the money, actually relates to 'Recovery of unpaid parking charges'. I think I will simply reject the charge on the basis that at no point was the car parked at the stated location - which is the absolute truth.

That's definitely the approach I would take. Their operation is ludicrous and utterly without legal foundation. It may even be criminal.

Sticking to that one point - the vehicle was never parked and they haven't a shred of evidence otherwise - is the way to go. Stick it to the DVLA also: the PPC hasn't a shred of evidence that a parking charge was ever incurred and therefore has no reasonable cause to request keeper details. As clear a breach of the DPA as you could imagine.

StarSaver

They did a lot of work with photos and all relevant documentation. sorry I am not able to post photos on here .




Case Summary Charge Notice xxxxx Site Rules: Bus & taxi access only at all times for drop off/pick up. Vehicles other than taxis/buses will be issued with a £60 charge notice. Reason For Issue: Unauthorised use of bus and taxi drop off/ pick up Case Summary: On 23/2/15 at 15.39 Mr xxxxxxx vehicle, registration xxxxxxx, received a charge notice at our York College Bus/Taxi lane site for unauthorised use of bus and taxi drop off/ pick up, due to the vehicle being neither a bus nor a taxi. As can be seen from the ANPR camera photos (see Images section) Mr xxxxxxx’s vehicle has been captured using this restricted site without authority. This is a breach of the clearly displayed site rules which state “Bus & taxi access only at all times for drop off/pick up”. As such, Mr xxxxxx’s vehicle received a charge notice. In his initial appeal to Minster Baywatch Mr xxxxxxx claims:  The sum does not represent a genuine pre estimate of loss, nor is it a core price term, further stating it is a penalty and not commercially justifiable  The signs to the site were not seen and are ambiguous  There is no evidence of proprietary interest in the land  The notice to keeper fails to comply with POFA 2012 and breaches various consumer contract/unfair terms regulations  There was no consideration flowing between the parties and no contract with the driver or keeper  POFA 2012 applies to parking only; there is no keeper liability for driving through a road. In response to Mr xxxxxxx’s point that the amount of the charge does not represent a genuine pre estimate of loss and is disguised as a penalty and not commercially justified Minster Baywatch assert the charge amount of £60 for breach of the sites rules is justified. In the recent court of appeal judgement in Parkingeye Limited v Beavis, Lord Justice Moore-Beck agreed with the decision of Judge Moloney QC in the county court hearing of the case and confirmed the correct approach to the issue of whether a clause of a contract is unenforceable as a penalty requires an examination of its roles from a number of different perspectives including proportionality of actual loss, deterrence and commercial justification. Moloney ruled although the principle object of the charge in the case was deterrence of breach of the site rules, it was neither improper in its purpose nor manifestly excessive in its amount (£85) having regard to the level of charges imposed by local authorities. Moloney viewed the charge of £85 as commercially justifiable and Lord Justice Moore-Beck agreed with this in the court of appeal judgement, stating that although Parkingeye suffered no direct financial loss from the breach of site rules in the case, they were likely to suffer indirect financial loss as an inability to manage parking at the site and deliver the services they were contracted with the landowner to provide would likely result in the loss of the contract and consequent financial loss and damage to the companies commercial reputation. Minster Baywatch therefore assert the charge amount of £60 in the present case is justifiable on these principles. Lord Justice Moore-Beck also agreed with Moloney that some support for the view that charges of this kind are not to be regarded as unenforceable can be found in section 56 and schedule 4 of POFA 2012. Lord Justice Moore-Beck states these provisions strongly support the conclusion that Parliament considered it to be in the public interest that parking charges of the kind now under consideration should be recoverable provided they had been brought clearly to the attention of the motorist. Minster Baywatch assert the charges in this case were clearly brought to the motorist’s attention on entering the site and refer to the Images section to support this. In response to Mr xxxxxxx’s point regarding signage at this site, Minster Baywatch refer to the Images section. It can be seen from the photos of the entrance to the site that it is clearly signed. There are six signs clearly stating the use of the site; two compliant enforcement signs, 2 buses and taxis only signs and 2 statutory road traffic signs indicating restricted access as detailed in the Highway Code. Minster Baywatch are confident this signage is highly visible even in darkness and positioned in such a way as to allow drivers to read. We assert the meaning of the site rules is unambiguous. In response to Mr xxxxxxx’s claim that there is no evidence of Minster Baywatch’s proprietary interest in the land in question, we can confirm that is correct. According to section 7 of the British Parking Association AOS code of practice however, Minster Baywatch does not need such an interest in the land to issue and enforce parking charges here. The “written authorisation of the land owner (or their appointed agent)” is needed “before you can start operating on the land in question”. Minster Baywatch refer to the Other Evidence section of this document where a copy of licence agreement between Minster Baywatch and York College (landowner) can be viewed. Minster Baywatch therefore assert we have all necessary legal permissions to issue and enforce charges issued on this land. In response to Mr xxxxxxx’s claim that the notice to keeper does not comply with POFA 2012 Minster Baywatch refer to the Parking Charge Notice and Any Notes section, where a copy of the notice is provided. Mr xxxxxxxx does not state exactly how he considers the notice to be defective. Minster Baywatch therefore simply assert the notice to keeper issued to Mr xxxxxxxx adheres to the guidelines set out in section 20 of the BPA AOS guidelines and schedule 4 of the Protection of Freedoms Act 2012. It is therefore correct in its content and not defective. In response to Mr xxxxxxx’s claim that there was no consideration nor acceptance of the contract to enter this site Minster Baywatch assert the contract to park is automatically accepted by drivers on entering the site; the signage clearly stating “Contract to enter” and “By entering on this property, you have agreed to these conditions”. As we have received no contact from the driver of the vehicle stating that they rejected this contract before the vehicle used the site, Minster Baywatch assert it was accepted by the vehicle driver. In response to Mr xxxxxxx’s claim that POFA 2012 schedule 4 applies to parking only and that there is no liability for driving through a road, Minster Baywatch assert as this lane is specifically for the use of buses and taxis when dropping off or picking up at this site i.e. the parking of these vehicles whilst they are dropping off or collecting students/visitors/staff from York College, this was an unauthorised use of drop off/pickup. The vast majority of ANPR sites across the country which successfully enforce against vehicles not authorised to be on sites by issuing “Charge Notices” enforce by taking a photo of a vehicle both entering and exiting a site - this is the only evidence they gather which is then the evidence of a “parking breach” and the reason for issuing a “Charge Notice”. This same evidence is then relied on successfully in court where necessary to prove a parking event occurred. These entry/exit photo’s gathered in this practice don’t prove a vehicle has actually “parked” and don’t show a vehicle in a parking area, that said a Notice is issued legally. In these circumstances, an argument from the vehicle owner/driver that they never actually parked during their visit wouldn’t be a valid excuse and the burden of proof would be back on the driver to prove this. The circumstances in this situation are no different. The lane in question is designated for buses and taxis only to drop off and pick up students and visitors to the college. Mr xxxxxxxx’s vehicle is firstly, not a bus or taxi and secondly, neither Mr xxxxxxx nor the vehicle driver has provided any evidence that the vehicle did not in fact stop or park on this lane. As the sole purpose of the lane is for dropping off and picking up, Minster Baywatch assert the burden of proof is on the driver or, if not identified, Mr xxxxxxx to prove this did not take place. In his appeal to POPLA again states the vehicle entered the site by accident and that it was impossible from a safety point of view to turn around on the one way street and that the driver had no option but to continue and exit at the other end. Minster Baywatch assert there is in fact ample space to turn in the large red area at the entrance to the site, in order to avoid breaching the rules (see Images section). We assert therefore the driver did have the opportunity to avoid breaching site rules as he was able to halt his vehicle and turn it to exit the lane no matter which way the vehicle was turned into the site. In response to Mr xxxxxxxx’s repeated claim that the charge is a penalty, excessive and not a genuine pre estimate of loss Minster Baywatch refer to our argument above. In response to Mr xxxxxxxx’s claim that the contravention did not take place or is not valid due to the fact he claims the vehicle did not park, Minster Baywatch refer to our argument above. Mr xxxxxx claims the ANPR photo of his vehicle shows it driving on a road not in a car park and that the road is not connected to a parking area. Minster Baywatch assert this is incorrect. The site is linked to a specific drop off/pick up area at the end and therefore the vehicle’s presence is sufficient to establish breach as explained above, in accordance with the principles that all other ANPR charge notices are enforced. We assert therefore that POFA 2012 is applicable to this charge notice and has been quoted correctly in the NTK. In response to Mr xxxxxxxx’s claim there is no contract between Minster Baywatch and the landowner or standing to form contracts with drivers, Minster Baywatch refer to our argument above and the Other Evidence section. In response to Mr xxxxxxx’s claim that no contract was formed with the driver due to the fact the driver could not stop to read the signs as they enter the road, Minster Baywatch assert the signs at this site are perfectly legible from a moving vehicle turning into the site. We again refer to the Images section as proof of this and can also confirm that the signs have been approved as compliant with the BPA AOS code of practice by the British Parking Association – please note the two main signs are bright yellow and not disguised at all. In response to Mr xxxxxxx’s point that the vehicle driver was not granted a grace period at this site Minster Baywatch assert we are fully compliant with the BPA code of conduct. Every driver entering this site has the opportunity to park their vehicle, read the signage and choose to turn off and not enter if they choose, please refer to previous points regarding area to turn off. In response to Mr xxxxxxx’s point that signage at this site is misleading and unclear we again refer to the Images section which show the signage to the site is clearly visible, the site rules are easily readable even from a moving vehicle and the meaning of the site rules is unambiguous. Mr xxxxxxx’s claim that the signage at this site must be compliant with The Traffic Signs Regulations and General Directions 2002 is incorrect as this is private land and therefore these regulations are not applicable. Mr xxxxxxx’s claim there are only two signs at this site is also incorrect, there are in fact 6 signs clearly stating the use of the site; 2 compliant enforcement signs, 2 buses and taxis only signs and 2 statutory road traffic signs indicating restricted access as detailed in the Highway Code. If a vehicle is turning right into the road, a ‘No right turn’ road sign (see Images section) is clearly visible on the left side of the road. This is a statutory road sign placed by the local authority/highways, assumedly due to the dangers vehicles turning right into this site pose to the public and/or students at the college site, this sign serves to further highlight the legal importance of not turning right into this site. Whilst Minster Baywatch did not place this sign and cannot prosecute drivers for disobeying the Highway Code we would highlight this breach and that this sign further highlights the clear rules on the site. Minster Baywatch signage is clearly visible at the site when turning into it.
In response to Mr xxxxxxx’s claim that the ANPR image is not time and date stamped, Minster Baywatch refer to the images section where a time and date stamp can be seen in the top left hand corner of the image.
In response to Mr xxxxxxx’s claim the ANPR camera at this site is non-compliant with section 21 of the BPA AOS code due to its being a single exit camera system at a location which is not a car park, Minster Baywatch assert this is untrue. The ANPR system at this site is both reasonable and transparent; the camera being clearly visible (see images section) and the signage actually displaying a large image of a camera to warn drivers of the use of this technology. The camera is in no way ‘secret’ and the signage is obvious however there is no obligation to make the camera obvious. Minster Baywatch have also previously explained how this site does in fact qualify as a car park and refer to this explanation to refute Mr xxxxxxx’s claim using an ANPR camera on this site is a breach of the code. Minster Baywatch confirm that we abide by sections 21.2, 21.3 and 21.4 of the code and that this is confirmed by our passing of our recent BPA audit (see other Evidence section), which included. It is stated clearly on our signage that the data captured by the ANPR camera will be used for the purposes of ensuring compliance with the conditions as detailed on the signage. It is explained an application for keeper details may be made to the DVLA and a charge notice issue through the post (see Images section).
For the above reasons minster Baywatch assert this charge notice was correctly issued and Mr xxxxxxxx’s appeal correctly declined.

StarSaver

Xxxxxx
Xxxxx
Xxxxxx
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POPLA Case xxxxxxxxxx

Charge Notice xxxxxxx – Minster Baywatch

Dear POPLA Assessor

In response to the "evidence pack" Minster Baywatch have submitted:
Minster Baywatch Have submitted an ‘evidence’ pack in support of their speculative and disputed invoice. I do not intend to address each and every point they have raised in detail.

In making their assessment I ask the POPLA assessor to consider the following in further support of my original POPLA appeal.

1. There is no Genuine Pre-estimated of Loss breakdown included to show how they have come up with £60: As business costs are not losses and they cannot be passed down to a motorist as GPEOL. Minster Baywatch only seem to refer to the recent well publisised court case instead of demonstrating how their £60 is not a GPEOL - Despite submitting this huge 'evidence' pack they have failed to do this.


In the case of Dunlop Pneumatic Tyre Co
Lord Dunedin said that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.''...''it is a penalty when a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

Furthermore I point the POPLA adjudicator to the follows verdicts from recent adjudications, circumstances which are virtually identical to this case in which the appeal was upheld on one or more of the reasons I cite in my appeal:

POPLA Assessor Chris Adamson has stated in June 2014 in response to VCS adjudication and GPEOL that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made
clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party frombreach. This is most clearly stated in Lordsvale Finance Plc v
Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank
of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”

2. "...The appellant has made a number of submissions, however, I will only elaborate on the one submission that I am allowing this appeal on, namely that the parking charge amount is not a genuine pre-estimate of loss.

The burden is on the operator to prove that the parking charge is a genuine pre-estimate of loss. Although a detailed breakdown may not necessarily be required to prove this, as the appellant has questioned the level of the charge in this case, it is necessary for the operator to provide an explanation as to how this sum was arrived at as an estimate of the damage which could be caused by the appellant’s alleged breach. However, the operator has not provided a breakdown of costs under each head of claim. I am unable to see how the parking charge amount has been calculated. In addition, the operator has included “Central Payments Office (CPO) – Indirect Overheads”. I do not accept that these costs have been incurred as a direct result of the appellant’s breach. As the operator has not produced a breakdown of costs, I am unable to determine the proportion of these costs in relation to other heads of claim listed by the operator. On this occasion, I am not satisfied that the operator has discharged the burden.

In consideration of all the evidence before me, I find that the operator has failed to prove that the parking charge amount was a genuine pre-estimate of loss.

2.Signage- The colours blue and yellow are specifically mentioned in the BPA Code of Practice as the sort of bright colour contrasts to avoid. Use of capital letters and mixing large and small font are also deemed unclear as far as signage is concerned. Minster Baywatch have mixed this into their signs despite the fact they appear to be new and should match the requirements of the BPA CoP.

3. How can Minster Baywatch possibly class this through road as a car Park? It is what it says it is: ‘a drop off/ pick up point for Busses and Taxis’. There is no car parking allowed whatsoever, there is no where to purchace parking – at all, for anyone. This is Not a car park. I therefore repeat that Minster Baywatch have in fact obtained my details from the DVLA fraudulantly. The alleged contravention did not take place
The notice issued states ‘You are notified under Paragraph 9 (2) (b) of
Schedule 4 Of the Protection of Freedoms Act (POFA) 2012 that the
driver of the motor vehicle is required to pay this Parking Charge
Notice in full.

The relevant part of the POFA states –(The notice must) inform the keeper that the driver isrequired to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.

This paragraph in no way applies to the alleged contravention which is ‘Unauthorized use of Bus and Taxi drop off/Pick up’. The Parking Charge Notice does not apply to the driver of the vehicle having entered a car park where charges apply nor does it refer to any specified period of parking where parking charges apply.

The photographs on the parking charge notice clearly show the car driving on a road and not in a car park. There was no parking contravention at all. Minster Baywatch are not able to refer to a regulation that applies to driving on an unauthorized road. No contravention applicable to POFA
actually took place. My Driver details should not have been obtained from the DVLA for a non parking issue. I have written to the DVLA to complain about this

4. No Grace Period given. Minster Baywatch State that “every driver has the opportunity to park read the signs and then turn off and not enter the area” I completely disagree, please look at the photographs in their evidence and mine, the road is double yellowed, look at it carfully, once the driver has entered this area its not safe to turn around as there is not sufficient room, its not safe or practicle to stop at this entrance either as this would cause an obstruction of this one way road
The driver did what was safest to themselves and others around them and continued but did not stop. If there had been a possiblility to safely exit the area sooner then the driver would have done this, The driver could not possibly enter into a contract as they could not read the T&C on the signs, take in the information and make an informed decission.
Furthermore although Minster Baywatch say the driver would be able to to read their signs whilst in a moving car; this is just impossible read them sufficiently to have be deemed to fully understand the T&C's to which it is alleged I agreed as the registered keeper of the vehicle. Minster Baywatch’s own 'evidence' photos show that there 2 main signs are nearly perpendicular to the flow of traffic, and by their own admission since the driver "drove off" logically indicating they did not deem the contact acceptable thus rejecting it - Again there is no evidence of a contravention taking place as the vehicle was never parked and did not stop.

5.There is only one ANPR on exiting this road, The driver did not stop, Misnter Baywatch have no evidence of how long the driver was within the Unauthorised area as they have no ANPR on entry but only one on exit. The driver did not stop but removed themselves from the unauthorised area as soon as possible in the safest way possible.

6. I believed the photo was not date stamped because I could not see and still cannot see it on the NTK form (please see the copy in their evidence pack)

7. If a driver turns right, on to this road in error, which i believe was the case in this incidence, there there is no possible way to see any signage until actually on the unauthorised road (see my original photo evidence)

This case was clearly not a parking issue and not breakdown of GPEOL has been given to me



Accordingly, this appeal must be allowed.

StarSaver

Did i win???

StarSaver

Yes I Did Win on one point, they had no evidence how long the driver was in the restricted area AS THEY ONLY HAVE ONE CAMERA ON EXIT AND NOT ONE ON ENTRY


popla letter:


The assessor has considered the evidence from both parties and determined that the appeal be allowed
The operator should now cancel the parking charge notice forthwith.


Reasons for the assessors determination:
Before considering the substantive issues raised by the parties it is necessary to consider whether it is possible for the appellant to be found liable for the charge. Liability to parking charges attaches only to the driver and, where certain requirements are met, to the keeper of the vehicle. As the appellant has at no point admitted being the driver of the vehicle and no evidence of this has been provided, but the appellant was the keeper of the vehicle, in order for the appellant to be liable for the charge the keeper requirements of schedule 4 of the protection of freedom act 2012 must be complied with

Paragraph 1(1) of Schedule 4 provided that it applies "where a driver of a vehicle is required.....to pay parking charges in respect of the parking of the vehicle on relevant land." As keeper liability can only be created through the operation of schedule 4, the appellants vehicle must be shown to have parked at the site.

It is common ground that the operator cannot show this, as they only detected that the vehicle made use of the area of the site restricted to busses and taxis, and did not detect the duration of this use. This means that it cannot be shown that the vehicle stopped in the area, so it cannot be shown that the vehicle was parked. Therefore the appellant cannot be found to be liable for the charge

accordingly, I allow the appeal