Parking ticket for parking before opening time

Herzlos

enfield_freddy wrote: »

yes there is free parking outside of store opening hours , however to use this facility you must enter your reg No in the terminal situated in the range

So you can park outside of opening hours, as long as The Range is actually open?

So you can make the point that whilst it's allowed, it's not actually possible to validate?

Guys_Dad

This would be a winning point for PPC in court.

Judge : - You arrived before opening time?

OP:- Yes

Judge:- So you waited and used the store?

OP:- Yes

Judge :- So why did you not register your car when you went in just as if you had arrived after opening time?

OP:- No valid answer.

Herzlos

OP:- Because I didn't buy anything and didn't see anything directing me to use the machine.

Guys_Dad

Herzlos wrote: »

OP:- Because I didn't buy anything and didn't see anything directing me to use the machine.

I was referring to your previous post's logic.

Daman2971985

enfield_freddy wrote: »

yes there is free parking outside of store opening hours , however to use this facility you must enter your reg No in the terminal situated in the range

Are sure they use a terminal system in the store? as ive never noticed any terminal like that in the store before.... certainly ive been in the store at other times and not seen or used any such terminal and yet didn't get tickets for those other visits.

My assumption thoughout this was that ParkingEye just use the ANPR cameras to track entry and exit, and send out tickets for cars that are recorded staying to long or, in my case, arrive before the store is open?

Herzlos

You would need to check. It could be an ANPR system that'll send a ticket if you didn't validate, or it could have sent it because you entered too early.

In any case, they still don't have a leg to stand on.

Daman2971985

Its taken a while, but ParkingEye have now responded stating that they have rejected my appeal (no big surprise there). As such I am now planning on moving forward with a POPLA appeal and have drafted the following letter to put with the appeal. Any comments welcome

As ever thanks to everyone that has posted so far! Oh and Herzlos, sorry i didnt spot your last message, but no, there is definitely no terminal or ticket system in use. its literally just an automatic ANPR system that they use to track how long your in the car park and at what times! obviously that is set to 2 hours max during opening times, and 0 hours 0 minutes any other time.


CAR REG XXXXXXXXXXXXXXXX

As the registered keeper of the car mentioned above I would like to appeal the referenced parking charge notice (PCN) issued for a 1 hour 52 minute stay at the car park associated with ‘The Range’ in Shirley, Southampton, a car park that operates a free 2 hour stay system.
As a brief introduction to the situation surrounding the PCN being issued, The driver of my vehicle happened to be in the vicinity of ‘The Range’ early one Sunday morning having dropped someone off at a nearby hospital for some tests. The driver had some time between drop off and subsequent collection so decided to pop into ‘The Range’ store for a browse and to enquire whether a certain fire pit the driver was interested in was in stock.
The driver was at the time unaware of ‘The Range’ opening hours and had unknowing arrived prior to the store being open. The driver considered this no real issue and decided to wait for the store to open. The driver could see the shop doors from the car so waited in the car until the store opened. The car park was virtually empty throughout the period in question so no other car park users were impacted in anyway. Following the store opening the driver established that the Fire Pit was still not yet in stock and left the car park within the 2 hours free parking limit. The Driver was either inside the car, or within the boundaries of ‘The Range’ thoughout the period in question.
This PCN is being appealed for the reasons listed below, I would kindly request that each point is considered as part of this appeals process. A section providing full details relating to each of the points is also included following the list. I respectfully request that this parking charge notice appeal be allowed and await your decision.

1. The signage at the site is inconsistent with that stated in the PCN:
2. The opening hours of the store are not clearly marked
3. Failure to mitigate loss
4. ParkingEye Ltd has no contractual authority
5. The charge is punitive and not a genuine pre-estimate of loss
6. Keeper Liability Requirements and the Protection of Freedom Act
7. No Contract was entered into between the Parking Eye and the Driver or Registered keeper
8. Unfair terms of contract
9. Without a contract
10. Non BPA compliant signage

1. The signage at the site is inconsistent with that stated in the PCN
In the notice sent by ParkingEye it is clearly stated that there is 0 Hours 0 Minutes “maximum free stay” (ParkingEye’s PCN is attached in scanned PDF form, “PCN.pdf”). This in directly contrary to the signage at the car park in question which clearly states 2 hours free parking.
In support of this statement, please find attached an image of the entrance to the car park in question (“The Range Entrance.png”). This image clearly shows the sign stating “2 hours max stay” is permitted. This image is an unedited screen shot taken from Google Street View and is representative of the level of detail a driver could be expected to observe at entry. I have also attached a zoomed in image of just the sign for your ease of viewing (Signage.png)

2. The opening hours of the store are not clearly marked
The opening hours of the store in question are not clearly marked anywhere in or around the car park. The driver of the vehicle had no way of knowing what actual opening hours of the store were prior to entry, and the desire to wait for the store to open is not contrary to the purpose of the car park (to enable visitors to ‘The Range’).
The driver was present at the time the store was opened for customers, and entered the store thus meeting any requirements that may exist for the car park to be customers only.

3. Failure to mitigate loss
As was stated in section 2 above, the opening hours of the store are not clearly listed, and if permission is not granted for customer to await opening in the car park then some efforts should be undertaken to bar customers from attempting this practise. The Car Park in question has the capacity to block off entry to motor vehicles (please see attached image “The Range Entrance.png” and note bollard securing points), this facility was not used and thus no attempt to mitigate loss was made.

4. ParkingEye Ltd has no contractual authority
In the notices they have sent me ParkingEye Ltd have not shown any evidence that they have any proprietary interest in the car park/land in question. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I require ParkingEye Ltd to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that ParkingEye Ltd are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

5. The charge is punitive and not a genuine pre-estimate of loss
Judging by the wording of the parking charge notice this is clearly an attempt to enforce this charge under paragraph B 19.5 of the BPA Code of Practice in which it states that this must be a genuine pre-estimate of the loss that may have incurred. ParkingEye Ltd claim that my car was in the car park for 1 hour 52 minutes for which the typical tariff would be £0, yet they are asking for a charge of £100 for this penalty. This alone is far more than the cost to the landowner could have lost for the time my car was said to have parked there, especially considering the car park was virtually empty throughout this duration. The charge is clearly punitive and disproportionate to any alleged breach of contract.

6. Keeper Liability Requirements and the Protection of Freedom Act
As keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge. In regards to the notices I have received Parking Eye has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.
I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver). In their parking charge notice letter at no point did they actually invite me as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact I am under no legal obligation to do so). The wording of the PCN actually makes it sound like I have little choice but to give up the driver and does not actually state the choice to pay it myself. I would also like to point out that the Act stipulates that the parking company must provide me with the period the car was parked. I would strongly argue that the format of evidence provided (photographs from a number plate recognition camera showing the vehicle enter and leave the car park) is not actually valid or sufficient on its own as a form of evidence. Parking Eye should also have issued a Notice to Driver stuck on the vehicle to back up their claims that the car was even parked in the first place, which in this case they failed to do.

7. No Contract was entered into between the Parking Eye and the Driver or Registered keeper
Although I was not the driver I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Parking Eye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have signs with such small writing and rely on drivers to look carefully for where and how the terms are displayed.
It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.
Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.
I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

8. Unfair terms of contract
Although there is no contract between Parking Eye and the driver (or myself), if there were then I would ask POPLA to consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply. I have highlighted the following specifically as I believe they apply directly to this case:
2. (1) (e) Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.
5. (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
5. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one ParkingEye Ltd are suggesting. A company such as Parking Eye needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

9. Without a contract
Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award ParkingEye Ltd could seek would be damages. As there was no damage to car park there was no loss to them at all and therefore should be no charge.

10. Non BPA compliant signage
The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver
Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park
As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than the Zero amount which would typically be expected.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

hoohoo

POPLA is changing over providers.

You need to register your intent to appeal now. In October, they will come back to you with instructions on actually appealing.

We might as well wait until then, as more may be known about the Beavis result.

Daman2971985

Ok thank you HooHoo, ill bear that in mindf and register with POPLA now. gives me a bit of breathing room to keep fiddling with my appeal

on that subject, Im debating adding an extra section at 4, to do with unclear contract terms though im not 100% sure as it feels a bit like im admitting that i did go into the car park too early? the signs there do state a time range and i did enter the car park too early (though obviously i didnt know that at the time), and im not sure i should actually admit thats what happened?

4. Unclear Contract Terms
Upon closer inspection of the terms and conditions listed on the parking signs at “The Range”, there is mention of times available for parking (Though given the small size of the font used to specify these times it would have been near on impossible for a driver to read those times and manoeuvre the vehicle in a safe manner).

It is not made clear on the signs that both the entry and exit time must be within the period stated rather then one or the other, and accordingly this ambiguity in contract terms cannot be held against the driver. The time of exit of the car park by the driver (stated on the PCN) does fall safely within the time period listed on the signage. This fact coupled with the stay being less than the stated 2 hours maximum would imply that no breach occurred at all.

Guys_Dad

I would appeal to the new POPLA on the grounds that you did not breach the t&c. You wanted to shop at the Rnage and did so. There is no sign that states that you can not wait till the store opens and you needed to shop early as you had a later appointment.
You left after the store opened and you had shopped and were within the maximum time.

Therefore no contravention arose.

Not you, of course, but "the driver".