Parking Eye parking fine - Radisson Blu Durham

beamerguy

vwass07 wrote: »

I have now had a response from POPLA to let me know that they have now received Parking Eye Ltd’s case file. I have e-mailed Parking Eye and received a copy this morning.

I now have seven days from the date of this correspondence to provide comments on this file.

I have had a look through and the following has been submitted by PE:

Date/Time in 5/110/15 09:35:01
Date/Time out 5/10/15 14:49:29
Time Allowed 0 hours 15 minutes 0 seconds
Time In Car Park 5 hours 14 minutes 28 seconds
Time Paid For 5 hours

This clearly is within my favour as 15 minutes is allowable, however, they then go on to say:

'By parking, waiting or otherwise remaining within this private car park, you agree to comply with these terms and conditions and are authorised to park, only if you follow these terms and conditions"
"If you fail to comply, you accept liability to pay the fee for unauthorised parking"

ParkingEye operates a grace period on all sites, which gives the motorist time to enter a car park, park, and establish whether or not they wish to be bound by the terms and conditions of parking. These grace periods are sufficient for this purpose'.

This indicates that the 15 minute grace period is only allowable for the first 15 minutes of entering the car park, yet within all the signage that they have used as evidence against me I can't see anything that states this, I would assume that it should say 'First 15 minutes is free', but it clearly states on the signage 'Up to 15 minutes free'. The small print on the sign is illegible on their submitted scanned images.

I requested that the Radisson send an e-mail which they did, but this has not been submitted with their evidence. I have spoken to the Radisson this morning, who have stated that they did send the e-mail off but on querying it further they believe that it is the FIRST 15 minutes. They can send me an e-mail to shows confirm that this was sent to PE and I was within the allowable time, this can help as evidence for my appeal to POPLA but this is obviously why it has been dismissed by PE. Due to this does anyone advise me pressing this any further or finally just giving in and paying the fine.

Any suggestions? Thanks

Very ambiguous ? If you are allowed up to 15 mins free then you can accept you have that 15 minutes.
As the sign says "up to 15 mins free", does that include it in the 5 hours you purchased as extra or exclude it from the 5 hrs purchased. Any sign must make this point clear

catfunt

Is this your thread relating to this case?

https://forums.moneysavingexpert.com/discussion/5354896

If so, you need to post this on that thread instead of starting a new one, as those trying to help you will have everything in context.
Send a PM to Crabman and ask him to merge the threads.

Did you include any points about requiring PE to produce a contract to prove they had landowner authority to issue parking charges? If so, was there any response to that in their evidence pack?

ManxRed

Any ambiguous term in a contract is usually interpreted in favour of the party that didn't write the agreement. That's you.

Crabman

Duplicate case threads have been merged

Coupon-mad

They can send me an e-mail to shows confirm that this was sent to PE and I was within the allowable time, this can help as evidence for my appeal to POPLA but this is obviously why it has been dismissed by PE. Due to this does anyone advise me pressing this any further or finally just giving in and paying the fine.

Errrm...you are at POPLA stage, why oh why would you give up now? You have a situation that is winnable, a paid for 5 hours parking plus a spurious 'claim' by them over a mere fourteen minutes which is the driving in & out time, for which the BPA allows more than 14 minutes because the end time alone (after the ticket expires) must be at least 11 mintes now.

And their own evidence says the grace period is 15 minutes so stop trying to bury your own case, of course the 15 minutes is not defined as before parking. A grace period is a grace period. Your car didn't exceed it.

I am guessing you've given away who was driving but you have other appeal points and you've already spotted one to draw to POPLA's attention, namely that PE's own evidence says there is a 15 minute grace period at that car park and the car was only there 5 hours (paid for) plus 14 mins all told including driving in and out.

And add this - ALL of the linked post about grace periods and about no GPEOL, all of it - tweaked to suit. You can use longer wording than in the comments box so don't be restricted, make a decent argument about the evidence and email it to POPLA instead of using the comments box:

https://forums.moneysavingexpert.com/discussion/comment/69653549#Comment_69653549

And you haven't told us if there is any landowner authority/contract or witness statement in the evidence pack or didn't you include 'no landowner authority' in your POPLA appeal as an issue?

And you've not said what the signs are like, do they all clearly state £100 or whatever the charge amount is? Some PE signs say everything except the charge!

Finally look at the photos of the car. Is it INSIDE the car park? I saw one recently where the pictures where both very clearly outside the car park barrier/boundary so it could be argued there was no evidence of what time the car was actually inside, seeing as before the barrier or actual entrance to the site boundary, the car waited (didn't it...to try and fail to read the busy signage and to check before entering that the driver had change...).

vwass07

Help please.

I have put together a first draft statement to go onto the POPLA appeal board. Apologies but I have more or less plagiarised a previous one and just amended to suit. I didn't mention anything originally about landowner authority in the initial appeal. Please have a look and let me know what anyone thinks, if it needs tweaking or anything adding.


I have looked through the case file from Parking Eye and have the following comments to make:

I am the registered keeper of vehicle reg xxxxx

The driver parked in the Radisson Blu car park in Durham on 5th October 2015 and purchased a ticket for a 5 hour stay which commenced at 9:35 and expired at 14.49. (shown in case file). The driver returned to the car at the time of expiry and put their belongings in the car in preparation to leave.

On the 10th October 2015 a PCN was received explaining that £100 was due and the total time in the car park was 5 hours 14 minutes. This was very upsetting and shocking to have received this PCN as a ticket was purchased for the correct period of time. Parking Eye have stated that the arrival time in the car park recorded was 9:35 so the first 3 minutes was taken up finding a parking space, purchasing a ticket and returning to the car to display the ticket (surely this cannot count as extra time in the car park). The remaining 11 minutes (so they state) was spent loading the car and leaving the car park as they have stated the departure time recorded as 14.50. This was not extra time parked as implied by Parking Eye and we are taking their word for it that the driver was within the 15 minute grace period. The entrance camera could be 2 minutes or more out from the exit camera and either of them might not match the Pay & Display machine timer.


I submit the points below to show that I am not liable for the parking charge:

• I was within the 15 minutes grace time period.

The sign was ambiguous and unclear because the entire sign is about 'PARKING TARIFFS' (not 'total stay') and the sign creates no obligations except to:

• 'enter your full VRN correctly’ (it says 'you must' and the driver complied with that term).
• 'park within bays' (the driver complied with that term).
• 'Blue Badge holders - tariffs apply'

Nowhere does it state that the 15 minutes is before or after the paid for time , it clearly states ‘up to 15 minutes’ on all signage. To clear all ambiguity surely this should state the ‘First 15 minute free.

Within the case file Parking Eye state:

‘ParkingEye operates a grace period on all sites, which gives the motorist time to enter a car park, park, and establish whether or not they wish to be bound by the terms and conditions of parking. These grace periods are sufficient for this purpose’.

Looking into the British Parking Association Code of Practice this requires that additional time upon entry and further time upon exit, is to be allowed. It is wholly unreasonable and a breach of the CPUTRs (misleading action) for ParkingEye to ignore their industry code, which states re grace periods:

Prior to parking:-

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

Upon returning to the vehicle:-

13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 11 minutes.


This was undoubtedly a ‘concealed pitfall or trap’, which resulted in a disproportionate and unfair charge which placed an unfair burden upon the driver, breaching Schedule 2 of the UTCCRs and the Unfair Contract Terms Act:

‘’SCHEDULE 2 Regulation 5(5) INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE
REGARDED AS UNFAIR - 1. Terms which have the object or effect of –

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;
(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract...’’

In our case, the driver relied upon the expiry time on the Pay and Display ticket and returned to the car in time so complied with all the P&D machine terms and the driver NEVER agreed nor accepted any contract to pay £100.

Obviously if drivers had any idea their P&D ticket would not be the time under which they would later be bound and that the operator held all the cards with a secret timing already working against them, they would not park at this car park at all because this is contrary to good faith.

This was no agreed contract and the sum is unfair, unreasonable and unrecoverable.

Additionally on contact with the Radisson Blu Hotel, a member of staff (name) e-mailed Parking Eye directly on November 6th to request that the parking charges be cancelled as I was within the 15 minute allowable grace time period. This has not been acknowledged by Parking Eye.

Umkomaas

You need to set this out with separate sections dealing with each issue (look through the example linked in post #3 of the newbies sticky).

1. No keeper liability
2. No landowner authority
3. No proprietary interest in the land
4. Signage
5. Unfair terms
6. No GPEOL

Then lay out your arguments under each, having bullet pointed the headings as the opener to your appeal.

vwass07

ok - have had another go, again I have taken the bulk of info from other docs on the site - what does anyone think, the only thing I am worried about is that it looks too much information?

I have looked through the case file from Parking Eye and have the following comments to make:

I am the registered keeper of vehicle reg xxxxx

The driver parked in the Radisson Blu car park in Durham on 5th October 2015 and purchased a ticket for a 5 hour stay which commenced at 9:35 and expired at 14.49. (shown in case file). The driver returned to the car at the time of expiry and put their belongings in the car in preparation to leave.

On the 10th October 2015 a PCN was received explaining that £100 was due and the total time in the car park was 5 hours 14 minutes. This was very upsetting and shocking to have received this PCN as a ticket was purchased for the correct period of time. Parking Eye have stated that the arrival time in the car park recorded was 9:35 so the first 3 minutes was taken up finding a parking space, purchasing a ticket and returning to the car to display the ticket (surely this cannot count as extra time in the car park). The remaining 11 minutes (so they state) was spent loading the car and leaving the car park as they have stated the departure time recorded as 14.50. This was not extra time parked as implied by Parking Eye (and we are taking their word for it) - the driver was clearly within the 15 minute grace period. The entrance camera could be 2 minutes or more out from the exit camera and either of them might not match the Pay & Display machine timer.

I submit the points below to show that I am not liable for the parking charge:

1 Signage
2 Unfair Terms
3 No keeper liability
4 No proprietary interest in the land
5 No GPEOL


Signage

The sign was ambiguous and unclear because the entire sign is about 'PARKING TARIFFS' (not 'total stay') and the sign creates no obligations except to:

• 'enter your full VRN correctly’ (it says 'you must' and the driver complied with that term).
• 'park within bays' (the driver complied with that term).
• 'Blue Badge holders - tariffs apply'

Nowhere does it state that the 15 minutes is before or after the paid for time , it clearly states ‘up to 15 minutes’ on all signage. To clear all ambiguity surely this should state the ‘First 15 minute free’.

Unfair Terms

Within the case file Parking Eye states:

‘ParkingEye operates a grace period on all sites, which gives the motorist time to enter a car park, park, and establish whether or not they wish to be bound by the terms and conditions of parking. These grace periods are sufficient for this purpose’.

Looking into the British Parking Association Code of Practice this requires that additional time upon entry and further time upon exit, is to be allowed. It is wholly unreasonable and a breach of the CPUTRs (misleading action) for ParkingEye to ignore their industry code, which states re grace periods:

Prior to parking:-

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

Upon returning to the vehicle:-

13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 11 minutes.


This was undoubtedly a ‘concealed pitfall or trap’, which resulted in a disproportionate and unfair charge which placed an unfair burden upon the driver, breaching Schedule 2 of the UTCCRs and the Unfair Contract Terms Act:

‘’SCHEDULE 2 Regulation 5(5) INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE
REGARDED AS UNFAIR - 1. Terms which have the object or effect of –

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;
(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract...’’

‘’SCHEDULE 2 Regulation 5(5) INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE
REGARDED AS UNFAIR - 1. Terms which have the object or effect of –

Unfair Contract Terms Act 1977:
‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’


In our case, the driver relied upon the expiry time on the Pay and Display ticket and returned to the car in time so complied with all the P&D machine terms and the driver NEVER agreed nor accepted any contract to pay £100.

Obviously if drivers had any idea their P&D ticket would not be the time under which they would later be bound and that the operator held all the cards with a secret timing already working against them, they would not park at this car park at all because this is contrary to good faith.

This was no agreed contract and the sum is unfair, unreasonable and unrecoverable.


Additionally on contact with the Radisson Blu Hotel, a member of staff (name) e-mailed Parking Eye directly on November 6th to request that the parking charges be cancelled as the driver was within the 15 minute allowable grace time period. I have e-mail confirmation that this has been sent yet this has not been acknowledged by Parking Eye.

The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability

As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed.

I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was an overstay or failure to pay. When I first received the NTK I thought that they were charging for failure to show a ticket not an overstay – this was not clear. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'
NTK is not compliant, for example re this requirement:

The NTK specifically fails on all counts.

No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Parking Eye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Parking Eye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Parking Eye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Parking Eye.

The charge was not based upon a GPEOL and there is no justification for breach of the duty to allow grace periods

The charge is for an alleged (but denied) breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified, that this non-landowning third party can claim a sum in excess of any damages. However, no such GPEOL or justification can apply here.

£100 is hugely disproportionate to any alleged unpaid tariff and there was no unpaid parking time in any case as I was within the 15 minute grace time period allowable!

Coupon-mad

I think this is getting too confusing. That's a POPLA appeal and you've already done that, so this is not right. That's what comes of posting two threads which then had to be merged. Let's get this back on track.

This is the stage where you are simply rebutting the evidence pack so your first version was a better draft which we can work on to assist you - don't rush it. POPLA will be fine if you email this to them by the weekend. Don't worry if the portal 'evidence comments box' isn't there; don't use that. Just email POPLA once we've got this right.

I was within the 15 minutes grace time period.

Do we take it your POPLA appeal and first appeal blabbed about who was driving, like you have done there? If so then there is no need any more (because you've thrown it away as an appeal point) to talk about the driver in the third person. And you cannot rip apart the wording of the Notice to Keeper. Admitted drivers cannot rely at all on the POFA Schedule 4 so that was a waste. Rookie error, if you said who was driving; that's an entire appeal point in the bin.

I didn't mention anything originally about landowner authority in the initial appeal.

That was pretty daft (can't even blame rookie error this time) seeing as you were already here when you fired that off! You should have shown us a draft of your planned POPLA appeal and we would NEVER have told you to miss out landowner authority! You can't have even looked at the 'POPLA decisions' 'sticky thread' which was a mistake, and can't have read the POPLA examples in the other sticky thread for Newbies to read first (because ALL examples mention no landowner authority).

If you had made even a cursory glance at the 'POPLA Decisions' Sticky thread at the end (most recent decisions of the new POPLA service) you'd have noticed that a lack of landowner authority (ONLY when raised by the appellant) is currently the most commonly winning appeal point. So that's another clear and strong appeal point in the bin - but I'm still not telling you to pay this!

Let's get the rebuttal stronger than the weak-sounding POPLA appeal.

I have e-mail confirmation that this has been sent yet this has not been acknowledged by Parking Eye.

You need to copy that email into your word document rebuttal as proof.


You don't need this bit (below) - it makes no sense, there is no need to argue that the ANPR cameras could be 2 minutes out if PE's own evidence digs a hole, admitting there's a 15 minute grace period yet they are chasing after you for less than 15 minutes.

and we are taking their word for it that the driver was within the 15 minute grace period. The entrance camera could be 2 minutes or more out from the exit camera and either of them might not match the Pay & Display machine timer.

Keep digging at that hole and bury them. Hoist them by their own petard!


Finally you need a strong rebuttal of whatever drivel they've said about the Beavis case because this situation is NOT like it. You should be saying what's different about this case, why £100 is not proportionate nor commercially justified for non-parking time spent driving in and out. PLus there were minutes spent loading any bags, which is not parking and all this non-parking activity was well within the grace period allowed by PE and by the BPA CoP (quote it like you did above). Driving in and out within an allowed grace period is not a chargeable contravention and was not a situation covered by PE v Beavis.

You've also not answered my question about whether the pictures are of the car OUTSIDE the car park entrance (just)? It could be very important because I've noticed cases where the pics are both outside a barrier entrance, thereby showing no evidence at all of time spent in the car park, let alone time spent actually parked up.

vwass07

Thanks for this - I'm getting mixed up myself. Looking at the photos, it's impossible to tell if they are in or out - the back of the car looks like it's right in the middle of the entrance barriers.

When I first appealed to PE I didn't even look on this site , I just e-mailed them the ticket as I initially thought they were saying that I hadn't paid and displayed - had no idea it was this 'extra' time.

I'm a bit of a novice to all this and tried to get in touch with someone who could appeal on my behalf but with the Beavis case it seems as though no-one was taking anything on at the time.

Will try again drafting something later today after work and post it back on. Thanks for your help