Parking Ticket - Portishead Marina

tlw_18

Ok all here is my attempt at an appeal. I would like to send it at some point next week so any help is really appreciated.

Dear POPLA Adjudicator,

I was very distressed to receive a £100 parking fine for parking in a car park on Christmas Eve in the evening that was not clearly shown to be a residential car park.

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

1 Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage
2 No genuine pre-estimate of loss
3 No standing or authority to pursue charges nor form contracts with drivers

1. Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage
The “signs” explaining that the car park is for residents only is to the left of the entrance to the car park and to the right, both high up with no street lighting or lighting around it. The car park is behind the Hall and Woodhouse pub, and it is not clear from these signs that the car park does not belong to Hall and Woodhouse. These signs are not a 'sign' nor does it communicate full contractual terms & conditions. At the time of the contravention it was very dark (also raining) and no signage was clearly visible by the vehicle. Any photos supplied by Portishead Quays Marina to POPLA will no doubt show the signage in daylight or with the misleading aid of a close up camera with an extremely bright flash and the angle may well not show how high the sign is, or that there is no adequate lighting surrounding them. As such, I require Portishead Quays Marina to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo-shopping or cropping and showing where the signs are placed without the help of external lighting such as a camera flash or torch.

Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

The recent case of ParkingEye V Beavis [2015] UKSC 67 found in favour of ParkingEye, HOWEVER the judgment mentions that the signs in the case of Beavis were large and clear. This is not the same in this case. The signs are small, the wording is not legible and they are high from the ground. I therefore submit that Parking v Beavis [2015] does not apply in this matter. To support this, please find attached my pictures of the signs in question taken in the day on ____ and night on _____.

2. No genuine pre-estimate of loss
The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. Portishead Quays Marina must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Portishead Quays Marina have no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”. The car was parked for a total of 18 minutes, Parking Eye or Portishead Quays Marina could NOT have lost £100 for the vehicle in question to be parked for 18 minutes.


Portishead Quays Marina cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Portishead Quays Marina are likely to be paid by their client - so any such payment income must be balanced within the breakdown Portishead Quays Marina supply and must be shown in the contract, which leads me to appeal point 3 below.

3. 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, Portishead Quays Marina 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 Portishead Quays Marina to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between Portishead Quays Marina 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 Portishead Quays Marina.


This concludes my POPLA appeal.

I look forward to hearing from you.

Kind regards,

Coupon-mad

The car was parked for a total of 18 minutes,

No it wasn't.

Parking Eye or Portishead Quays Marina could NOT have lost £100 for the vehicle in question to be parked for 18 minutes.

It wasn't parked for 18 mins. Stop giving them something/admitting to something that isn't true! Look at the photos, the car is not 'parked' for that period, in fact it's quite possibly not even yet in the car park in the pics. Driving in and looking for a space and then driving out after a few minutes having tried to read the illegible traps of signs, then decided not to accept any contract nor even stop there, is not parking.

Read POPLA appeals with wording about 'grace periods' by searching this forum for 'POPLA grace periods ParkingEye' or find one like yours linked already in post #3 of the NEWBIES thread. That's what they are there for and you'll notice each has half a dozen appeal points.

Your case would be like a 'Town Quay' example with stuff about byelaws and NO KEEPER LIABILITY as long as you haven't already given away who parked/was driving. Find a Town Quay recent example from November or more recently and include an appeal point about 'no keeper liability' and another one about 'ANPR signs not stating how the data will be used nor that the time starts as soon as you pass the camera' like the one here:

https://forums.moneysavingexpert.com/discussion/comment/70106225#Comment_70106225

Portishead Quays Marina cannot include their operational tax-deductible business running costs

Your points #3 and #4 should read 'ParkingEye' not the landowner's name.

You, your extended family and your friends etc should all be signing this petition

https://petition.parliament.uk/petitions/111925

...if you haven't all done so already!

tlw_18

Surely grace periods aren't relevant here because it was a residents permit car park not a pay one?

Coupon-mad

tlw_18 wrote: »

Surely grace periods aren't relevant here because it was a residents permit car park not a pay one?

Where does the BPA CoP say that? It doesn't, of course. The moment the car was photographed at the entrance (sometimes OUTSIDE the car park, so check that!) is not the parking time. So don't say 'the car was parked for 18 minutes'. It wasn't.

A driver still has to be allowed the time to drive in, park, get out of the car, walk to any sign and read it and then decide whether to stay and accept the terms or not, and then if he decides to go he can also have the time taken to drive out. 18 minutes all told is not unreasonable especially if the signs were unlit and had to be sought out or were not seen at first, or at all.

tlw_18

Very difficult to tell where the pictures were taken (outside or in the car park) because it was pitch black, the only legible thing you can see is the number plate. This is my no keeper liability paragraph:

2. No Keeper Liability - Bristol Bye Laws

Portishead Quays Marina fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the you to pursue this matter with myself (the registered keeper). You have 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).

Indeed, and as you are already fully aware, no keeper liability can apply at all, due to the BRISTOL CITY DOCKS BYE-LAWS (2009)
which can be found at https://www.bristol.gov.uk/documents/20182/33656/city-docks-byelaws.pdf/4848ef7d-139d-4ed5-9387-f3173a72e604 (the byelaws), taking precedence and rendering this land outwith POFA and outwith 'registered keeper liability'. I refer you to Part 1, section 3 which states that Portishead Pier Estate is an area to which the byelaws apply.

POFA 2012 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 Portishead Quays Marina and the surrounding port is covered by bye-laws (statutory control) it clearly falls under 3(c) and is therefore exempt from POFA 2012.

For your to claim in your standard letters that you 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 you contend otherwise then I expect you forthwith to provide me with contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply around Portishead Quays Marina. If you fail to supply this information I will ask Bristol City Council and Trading Standards to investigate your conduct and prosecute you.

The byelaws make it very clear (at Part V, paragraph 68) that the penalties for parking on the land designated is solely in the gift of the Criminal Courts and as such you have no standing whatsoever to enforce civil parking charges or parking systems. Additionally, the byelaws also make utterly transparent that the Bristol City Docks bye laws to which they apply includes the Portishead Quays Marina area.

Coupon-mad

You need to change all the 'Portishead' to 'ParkingEye' throughout your POPLA appeal (except if you just name Portishead Marina in another context).

And that no keeper liability paragraph should not say 'you' (because it goes to POPLA and you aren't threatening to prosecute them). It should talk about 'the operator' or 'ParkingEye'.

Here's a POPLA example with the latest sort of wording about ANPR and the fact POPLA will be looking to see if the operator has signs telling drivers how their data is to be used and (CRUCIALLY in your case) that they are being timed at the point of entry rather than as the ordinary man in the street would expect, at the point of reading the terms at the P&D machines or after reading the signs and making an informed decision (or not, as the signs were unlit):

https://forums.moneysavingexpert.com/discussion/comment/70106225#Comment_70106225

So you need that sort of ANPR point. POPLA have found in favour of people on that point this year already.

You need a 'grace periods' point quoting from the BPA CoP and I would also point out to POPLA that it is impossible to tell where the pictures were taken (outside or in the car park - or in fact ANYWHERE ELSE, on street on the approach, driving past - or in another town even?) because it's pitch black in the photos on the PCN. The only legible thing you can see is the number plate. So this casts doubt on the actual time spent within the car park, if at all, because there are NO pictures showing the car actually in THIS car park boundary/having passed any signage at all. If photos are taken just outside the car park then it is perfectly feasible that the driver might have stopped there to try to read any entrance signs or look for a barrier or arrows on where to proceed. If so then the cameras are set in an unfair position and will be starting the clock at a time when the car should not be timed at all.

Edna_Basher

Hi tlw_18.

I've had a look at ParkingEye's site overview picture; there are at least two parts to the car park - a Pay & Display area and then some residents' parking next to their apartments. There are cameras at the main entrance to the site (leading to both the Pay & Display car park and the residents' parking) together with what ParkingEye describe as an "exclusion camera" opposite the entrance to the apartment area. It looks like your vehicle must have been picked up by this "exclusion camera".

Out of interest, what breach do ParkingEye claim (e.g. not purchasing the appropriate parking time, remaining in the car park for longer than permitted, not gaining the appropriate permit / authorisation etc.)?

Although I'm not convinced that parking at this site is covered by byelaws, there's no harm leaving this point in. It's up to ParkingEye to rebut this and if they don't, you can then argue that by their silence, ParkingEye have accepted your point.

There are a couple of other points to chuck in with regard to keeper liability. Suggested wording as follows:

ParkingEye’s Notice to Keeper failed to meet the strict requirements of POFA

Notwithstanding that Portishead Quays Marina is not relevant land, ParkingEye failed to deliver a Notice to Keeper that fully met all of POFA’s strict requirements, particularly Paragraph 9(2)(a) of Schedule 4.

• Contrary to the requirements of Paragraph 9(2)(a), the Notice to Keeper did not adequately specify the land on which the vehicle was parked. The Notice to Keeper’s description of the land as “Portishead Quays Marina BS20 7DF *” is too vague; this location covers a large area and I am aware that that this land contains several car parks, being a combination of private residential parking together with a Pay & Display car park for use by the general public. The Notice to Keeper does not specify the car park in which the alleged breach took place.
• Also, contrary to the requirements of Paragraph 9(2)(a), the Notice to Keeper did not specify the period of parking to which the notice relates. The Notice to Keeper specified the times which ParkingEye alleged that the vehicle arrived and departed (as recorded by ANPR camera images). These times are clearly not the same as the times between which the vehicle was alleged to have been parked

* assuming that the NTK specifies this address.

The car park signage failed notify the driver that ParkingEye intended to exercise its rights under POFA

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including;

Paragraph 68 (1): a trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

Paragraph 68 (2): a consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

Paragraph 69 (1): if a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

Also, Paragraph 21.1 of the British Parking Association Ltd Code of Pactice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. This paragraph also instructs operators that signs at the car park must tell drivers that they are using this technology and what they will use the data captured by ANPR cameras for.

I have good reason to believe that the car park signs did not clearly advise the driver that ParkingEye intended to use the data captured by its ANPR cameras as a means to pursue the vehicle’s keeper under POFA for parking charges in the event that they remained unpaid by the driver.

The establishment of keeper liability under POFA is not automatic; it is conditional upon the operator a) choosing to exercise its right to use the provisions of POFA and b) then fully complying with the strict requirements of POFA.

In the absence of the car park signs giving a clear warning that ParkingEye intended to use POFA to claim keeper liability, the driver (in accordance with their rights under Paragraph 69 of the Consumer Protection Act 2015) was reasonably entitled to conclude that ParkingEye did not intend to use POFA to pursue keeper liability.

4consumerrights

tlw_18 wrote: »

Hi all,

I am new here (however I have read the newbies thread) and I am slightly confused with the arguments presented.

I parked in a Parking Eye car park (which was unknown to me at the time) on Christmas Eve at around half past 8 for 18 minutes in the evening in Chandlery Square. I did see a sign, but there was no lighting around it (and there was only the one) so I took no notice of it. And yet £100 notice has come through the post.

I'm going to write to the manager to make a complaint. Should I also write one to Parking Eye at the same time?

I would be really grateful for some help!

AFAIK The permit area operated by Parking Eye in Chandlery Square is in front of the Hall and Woodhouse Pub adjacent to the Marina

The Pay and Display Car Park is just further down by the small harbour Sainsbury's ....

There are a lot of residential blocks around the area howevever I am not aware of Parking Eye in any of them. There is some talk of introducing RPZ for street parking in and around the complex area.

Both the Chandlery Square Permit and the pay and display do not have clear entrance signage btw and I do have pictorial evidence to support both ;-)

tlw_18

In regards to breach all it says is,

The signage, which is clearly displayed at the entrance to and throughout the car park, states that this private land, the car park is managed by ParkingEye lt. as a permit/authorised vehicle only car park and that those parking without the appropriate permit/authorisation will incur the Parking Charge displayed, along with other terms and conditions of the car park by which those who park in the car park agree to be bound.

By not gaining the appropriate permit/authorisation, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to ParkingEye Ltd.

tlw_18

The description of the land is Portishead Quays Marina - Chandlery Square car park, no post code or anything don't know if this will make a difference.

Also, this may just be me being very blonde, but I don't think I've had a notice to keeper, I've had a parking charge notice is that the same thing?