POPLA appeal Aire Street Leeds

Hy6gc

Reply from Leeds Council:

A planning permission is attached to a site, rather than a company. Therefore, the legal owner of the site would be able to use the permission, even if ownership changes.

Guys_Dad

Well worth making sure that you get a copy of the contract with the landowner and see if it is the current one.

Hy6gc

How would I go about this? Do I go directly to the landowner? I have made contact with the company developing the land and they are looking in to it, but I'm worried that I'll be speaking to someone in the office who may not understand what I need etc.

Hy6gc

Just a quick question regarding POFA 2012.
Reading around the forum, one of the conditions that has to be met for ANPR issued ticket is:


"- Advise that the driver is liable for the parking charge and the amount and that it has not been paid in full"


Does this mean the charge that should have been paid i.e. £2.50 for an hour's parking. Or does it refer to the charge now pending i.e. £100 from the PCN?


Just asking as if it is the former, the NKT is not compliant, if it is the latter, then it is. Am writing my appeal as we speak. Will post soon.


Thanks.

Hy6gc

Here is the first draft of my appeal. I have read a lot of threads and tried to bring together points pertinent to my case. I hope someone can read through and suggest any improvements.




1) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability

As this was a Pay and 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.

On the Notice To Keeper it only states that the car was in the car park for a certain amount of time and that the contravention was an overstay or failure to pay.

This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. The Operator has the technology to record car registrations, to collect and 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.

The registered keeper is submitting this appeal and Parking Eye do not have the identity of the driver, who is not the registered keeper.

As Parking Eye has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver.

A) - The unpaid parking charge that should have been requested (paragraph 9(1) of the Act) is that which was unpaid on the day before the Notice to Keeper was issued. This can only be the purportedly unpaid parking tariff and not £100 which had not been requested and which there was no facility to pay on the day before the Notice to Keeper was issued. Consequently £100 cannot be considered unpaid for the purposes of the Act. It clearly demonstrates that Parking Eye has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered keeper asked to pay the purportedly unpaid tariff.

– Parking Eye have failed to notify the registered keeper why the parking charge is due as is required by the Act. Their generic template PCN indicates that the vehicle supposedly stayed longer than was authorised or was not authorised at all. The Act states that the reason for the charge is made clear and again Parking Eye have failed to comply with the requirements of the Act and consequently cannot rely on its provisions.



2) Lack of grace period

The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers “…decide not to park but choose to leave the car park, you must provide them with reasonable grace period to leave, as they will not be bound by your parking contract.” (28.3)


And that when using Automatic Number Plate Recognition (ANPR), “…your system must allow drivers who have not paid the fee to leave a site within a reasonable period that allows for the conditions and environment of that parking site. This grace period should be long enough to allow motorists to leave without having their vehicle registration mark processed for a parking charge.” (30.2)


The time in car park is noted to be 0 hours 10 minutes and I feel that this constitutes a reasonable grace period to allow an informed decision and, following the decision not to park in this carpark, to leave without charge. As a result, the 2 above conditions have not been met by ParkingEye.

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

The 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.

4) The ANPR system is unreliable nor accurate.



ParkingEye's evidence shows no parking time, merely photos of a car driving in and out. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event.

As keeper I cannot discount that the driver may have driven in, realised it was pay and display then driven out. The BPA even mention this as an inherent problem with ANPR on their website;
ww.britishparking.co.uk/How-does-ANPR-work
The BPA's view is: 'As with all new technology, there are issues associated with its use:


Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'


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

This case is an unfair penalty and differs from the 'Beavis v Parking Eye' judgment as this was a pay and display carpark.

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.

Unlike in Beavis, it is confidently argued that this charge (£100) is hugely disproportionate to any alleged unpaid tariff.

The charge is not a genuine pre estimate of loss and as this was a paid parking site that can be distinguished from Parking Eye v Beavis.

If Parking Eye believe that inadequate payment was made (which their PCN fails to make clear and which is denied by the driver) their demand should be for any unpaid tariff as that would be their only loss.
£100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If Parking Eye believes their charge is a genuine pre-estimate of their loss it is demanded they produce a detailed and itemised breakdown of how this has been calculated.

In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £60 on days 1 to 14, then £100 thereafter. This is clearly an arbitrary sum invented by the Respondent.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.


5) Unclear, inadequate and non-compliant signage

Due to their high position, overall small size, being unlit and the barely legible size of the small print, the signs in the car park are difficult to read. This was compounded by the timing of the arrival at the car park. At this time of the evening, unlit signage is particularly difficult to read and prolonged the decision making process in this case.


Furthermore, the signage is 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')
- 'park within bays'
- 'Blue Badge holders - tariffs apply'

The only place the word 'stay' is mentioned on the sign is where it talks about maximum stay of 14 hours, the rest is all about 'parking time'. So as the P&D machine is the 'point of sale' and the P&D ticket is the receipt upon which an ordinary consumer would rely for the parking time, there was no contravention of the sign.


POPLA is requested to check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. It is contended that the signs on this land, in terms of wording, position and clarity, do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach.


6) 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 Parking Eye Limited could seek would be damages. As there was no damage to the car park there was no loss to them or the landowner at all and therefore there should be no charge.

This concludes my POPLA appeal.

Coupon-mad

That's not too bad. DO NOT BOTHER WITH THE WASTED ONE 'Without a contract' - no idea who thought that one up!

I don't think Aire Street signs say this though do they?

- 'enter your full VRN correctly (it says 'you must')
- 'park within bays'
- 'Blue Badge holders - tariffs apply'

Maybe they do but that's taken from Tower Road Newquay signs, which I know aren't exactly the same as the black/white signs at Aire Street.

I would add a bit more about grace periods and I would actually allege that you 'believe the grace period at this car park is in fact ten or fifteen minutes and put PE to strict proof to the contrary'. I've done that in POPLA appeals loads of times, forces PE to have to say what the grace period is - surely it's ten minutes at least!

Then I would expand the grace periods quote from the BPA CoP to show this:

The BPA Code of Practice 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.''

If the BPA Cop states that 11 minutes is OK after paid for parking then it is entirely reasonable to assume that ten minutes driving in and out, having not parked at all, falls within an allowed period of grace where no parking tariff can apply.

System

Looks like ParkingEye are very interested in this site. Must be a hot spot for them. Owners are BellaVale Ltd (NI609066)

There is a new Planning Application in yesterday for 24 hour parking with a 5 hour max - lots of opportunities for people missing the signs in the dark with 24 hour parking.

https://publicaccess.leeds.gov.uk/online-applications/applicationDetails.do?activeTab=documents&keyVal=NZCQ2YJB0FZ00

and a letter in support of ParkingEye from Elite

https://publicaccess.leeds.gov.uk/online-applications/files/6BFAB5CB627CCAEC889D6F5149D025CA/pdf/15_07448_FU-SUPPORTING_STATEMENT-1482608.pdf

Umkomaas

IamEmanresu wrote: »

Looks like ParkingEye are very interested in this site. Must be a hot spot for them. Owners are BellaVale Ltd (NI609066)

There is a new Planning Application in yesterday for 24 hour parking with a 5 hour max - lots of opportunities for people missing the signs in the dark with 24 hour parking.

https://publicaccess.leeds.gov.uk/online-applications/applicationDetails.do?activeTab=documents&keyVal=NZCQ2YJB0FZ00

and a letter in support of ParkingEye from Elite

https://publicaccess.leeds.gov.uk/online-applications/files/6BFAB5CB627CCAEC889D6F5149D025CA/pdf/15_07448_FU-SUPPORTING_STATEMENT-1482608.pdf

Both documents have been removed! That was quick!

System

Essential Maintenance

Due to unforeseen circumstances Public Access for Planning is currently unavailable.

We apologise for any inconvenience caused.

Give it time. It'll be back

Umkomaas

These are the messages I read on both links:

Planning Application details not available
This application is no longer available for viewing. It may have been removed or restricted from public viewing.

Will have another look later.