Parking Ticket - Portishead Marina

Edna_Basher

Yep, the Parking Charge Notice and Notice to Keeper are one and the same.

It's a shame that PE have been very specific about the land as being Chandlery Square car park. You'll have to scrub my first suggested paragraph regarding their non-compliant Notice to Keeper. However, the point about PE's failure to specify the period of parking still stands.

PE's reference to the driver not gaining the appropriate permit/authorisation means that they are claiming that the driver was trespassing. This is a good thing because it makes your case distinctly different from Beavis.

It also means that you can have fun drawing POPLA's attention to all of the deficiencies in PE's signs when PE submit their evidence pack. The generic small print on PE's signs refers to compliance with their "Parking Contract" but makes no mention of parking without authority (i.e. where no "Parking Contract" was formed).

tlw_18

Thank you all so much for your time and thoughts on this, I really do appreciate it! Here is my revised appeal (it is now 6 pages long). Edna Basher you mention PE submitting an evidence pack. Does this go to the POPLA adjudicator separately or is this assuming this appeal won't be accepted and that is the next stage?

Dear POPLA Adjudicator,

I was very distressed to receive a £100 parking fine for allegedly 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 Keeper Liability - Bristol Bye Laws
3 No genuine pre-estimate of loss
4 No standing or authority to pursue charges nor form contracts with drivers
5 Inadequacy of ANPR camera
6 The car park signage failed notify the driver that ParkingEye intended to exercise its rights under POFA
7 ParkingEye’s Notice to Keeper failed to meet the strict requirements of POFA

1. Unreasonable and unfair terms – no contract agreed to pay £100. Inadequate signage - distinguished from ParkingEye Ltd V Beavis [2015] UKSC 67
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 ParkingEye Ltd 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 Parking Eye Ltd 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 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). ParkingEye Ltd 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 ParkingEye Ltd are already fully aware, no keeper liability can apply at all, due to theBRISTOL 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 ParkingEye Ltd to claim in their standard letters that they 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 ParkingEyeLtd contend otherwise then I expect them 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 ParkingEye Ltd 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 ParkingEye Ltd 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.

3. No genuine pre-estimate of loss
The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. ParkingEye Ltd 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 ParkingEye Ltd 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”.

ParkingEye Ltd 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 ParkingEye Ltd are likely to be paid by their client - so any such payment income must be balanced within the breakdown ParkingEye Ltd supply and must be shown in the contract, which leads me to appeal point 3 below.

4. 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, ParkingEye Ltd 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 ParkingEye Ltd to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between ParkingEye Ltd 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 Ltd.

5. Inadequate accuracy of ANPR camera
ParkingEye Ltd is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require ParkingEye to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye Ltd was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

Furthermore, as described in the BPA Code of Practice under paragraph 21.1, “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner.Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.”

Additionally, expanding from point 1 above, Section 18.3 of the BPA Code of Practice states that any “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

Considering the observations made in point 2 (inadequate and non-compliant signage) above, I argue that Parking Eye has failed to meet the minimum standards set out in sections 21.1 and 18.3 of the BPA Code of Practice. While the available sign advises that the “car park (is) monitored by ANPR systems”, it does not inform the motorist what it is using “the data captured by ANPR cameras” for, as required under Section 21.1 of the BPA Code of Practice nor is it therefore “easy to understand”, as required under Section 18.3 of the BPA Code of Practice.

I would also point out that on the pictures provided of the vehicle on the PCN that it is impossible to tell where the pictures were taken as it is 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.


6. The car park signage failed notify the driver that ParkingEyeLtd 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.

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

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 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



Please note that nothing in my appeal prevents you from seeking to pursue the driver of the vehicle, though s/he is likely to have similar grounds to appeal. I will not be supplying the drivers details at any stage, as I am under no legal or moral obligation to do so.

This concludes my POPLA appeal.

I look forward to hearing from you.

Kind regards,

Edna_Basher

There's no harm chucking the kitchen sink at them. However, given the limitations of POPLA's website, you'll need to upload your full appeal as a PDF or MSWord file.

After you've submitted your appeal to POPLA, ParkingEye are allowed 21 days to respond with their own evidence. The BPA Code of Practice requires that they send this to POPLA and to you at the same time.

Sometimes ParkingEye chicken out and don't bother submitting an evidence pack meaning that they lose by default. However, if they do submit an evidence pack, POPLA will then allow you 7 days to add further comments to rebut ParkingEye's evidence. You get to have the final word and so that's when you can have fun picking ParkingEye's evidence to pieces.

Coupon-mad

There is loads more wrong with a PE PCN than just the missing period of parking. Here's one another poster used recently and it'll take your appeal to seven pages (which you submit under 'other' as a PDF with photos of signs embedded in the appeal if you are using them):



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

As this was a Pay and Display car park, the Parking Charge Notice (PCN) 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 of the Protection of Freedoms Act, 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 PCN, it only states that the car was in the car park for a certain amount of time and that the contravention was 'either' for not purchasing a valid pay and display ticket, remaining at the car park for longer than was made permitted or by not entering registration details via the terminal. No less than three possibilities, with no tariff information at all, nothing to tell the keeper whether a partial payment was made or none at all or a typo in the VRN.

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 PCN 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...'

The PCN specifically fails on all counts. In addition, the PCN omits the 'date sent' or 'date given', instead choosing to print a confusing 'date issued' which is neither. It was certainly not the date sent because the PCN arrived a week later and in any case, it is known that ParkingEye use iMail which queues their prepared documents for posting for up to 3 working days. So the 'date sent' in the post is always days later than any date on a ParkingEye PCN and therefore, this breaches paragraph 9(2): 'The Notice MUST: (i) specify the date on which the notice is sent (where it is sent by post) or given (in any other case).'

The registered keeper is submitting this appeal and the Operator does not have the identity of the driver. As the Operator 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.

tlw_18

Thank you both, I really really do appreciate this! I'll have a play around with what Coupon-mad has said, add that to the appeal and then is it pretty much good to go?

Edna_Basher

It's getting there.

I suggest a more forceful introduction to make it clearer that you’re the vehicle’s keeper - something along the lines of......

“Dear Sir

POPLA Ref. [606xxxxxxx] - PCN Ref. [xxxxxx/xxxxxx] – Vehicle Registration [FU2 PEL]

I write to lodge my appeal to POPLA regarding the above-detailed Parking Charge Notice issued to me by ParkingEye Ltd ("ParkingEye") as a Notice to Keeper in respect of an alleged breach of parking terms and conditions at Portishead Quays Marina - Chandlery Square on 24th December 2015. I confirm that I am the vehicle’s keeper for the purposes of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

When I initially raised my dispute with ParkingEye, I took great care to explain why it had no valid claim and I was therefore very disappointed to receive from ParkingEye a rejection letter that was very clearly a standard template.

I set out below the principal reasons why I am not liable for this parking charge”.

I also think there’s more work to be done on Point 3 to explain why your case is very different to that of Beavis.

Edna_Basher

To help you fill the kitchen sink even further, I've had a stab at explaining why Beavis is not relevant to your case.

The charge of £100 is extravagant and unconscionable and substantially exceeds any possible loss that the landholder would have suffered as a consequence of the alleged trespass

The circumstances at Portishead Quays Marina (Chandlery Square) are fundamentally different to those considered by the Supreme Court in the case of ParkingEye Ltd v Beavis (“the Beavis Case”).

As ParkingEye admits within its standard template rejection letter, in the Beavis Case, there was common ground between all before the court that the relationship between ParkingEye and Mr. Beavis was a contractual relationship.

However, in this particular case at Portishead Quays Marina (Chandlery Square), ParkingEye’s allegation (being parking without permit / authorisation) is clearly a matter of trespass and not breach of contract. Even if the car park signage had been clear and well lit, there could have been no contract between ParkingEye and the driver for the simple reason that the driver had not been invited / authorised to park.

The Beavis Case is not relevant to matters of trespass; I refer POPLA to the following extracts from the Supreme Court’s judgement:

Paragraph 97: ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass......

Paragraph 107: ....... it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.

Paragraph 190: It may be suggested that Mr Beavis thereby promised nothing which can in law constitute valuable consideration. He was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. But ParkingEye was not in possession of the car park, or capable of bringing proceedings in trespass. It had a mere right to control parking at the site - the right to permit or refuse others to park there on such conditions as it might stipulate. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract. Even if no Parking Charge had been stipulated, enforcement would still have been possible in law, even if a claim for damages or for an injunction might not in practice have been likely.With the stipulated Parking Charge, the nature of the intended contract is even clearer, although the question arises whether the Parking Charge is an unenforceable penalty. The quid pro quo provided by ParkingEye in return for Mr Beavis’s promise was the grant of permission to park for up to two hours in its discretion free of charge, on conditions. Each party thus gave the other valuable consideration.

Furthermore, the Beavis Case concerned parking at a Retail Park located close to Chelmsford Railway Station (journey time to London of just 35 minutes) and as such, is not relevant to restricted parking at a residential development in Portishead. I refer POPLA to Paragraphs 97 and 98 of the Supreme Court’s judgement:

The notice at the entrance describes ParkingEye as being engaged to provide a “traffic space maximisation scheme”, which is an exact description of its function. In the agreed Statement of Facts and Issues, the parties state that “the predominant purpose of the parking charge was to deter motorists from overstaying”, and that the landowner’s objectives include the following:

• The need to provide parking spaces for their commercial tenants’ prospective customers;
• The desirability of that parking being free so as to attract customers;
• The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers;
• The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and
• The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.
  
  Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. This was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public, in particular the customers of the retail outlets. The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available.

The case of an unauthorised motorist inadvertently straying onto private residential property for a period of 18 minutes is clearly very different to a commuter or other long-stay motorist occupying a parking space for a “long period” beyond a contractually agreed period of 2 hours’ free parking.

Also, ParkingEye’s success in the Beavis Case was dependent upon there being clear signage in the car park. I refer POPLA to Paragraph 90 of the Supreme Court’s judgement:

At all material times since then, ParkingEye has displayed about 20 signs at the entrance to the car park and at frequent intervals throughout it. The signs are large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so.

As detailed in Point 1 of my submission, ParkingEye’s signs at Portishead Quays Marina (Chandlery Square) were neither prominent nor legible.

tlw_18

Thanks Edna Basher, I've added this and along with the photos I'm sending the appeal off tonight. Thank you once again for all of your help, hopefully we will have a good outcome!

Coupon-mad

I predict a throwing in of the towel as PE's reaction to this throwing of the kitchen sink at them!

Edna_Basher

Coupon-mad wrote: »

I predict a throwing in of the towel as PE's reaction to this throwing of the kitchen sink at them!

Or perhaps a throwing in of the tea towel, to be more precise


Three weeks after submitting your POPLA appeal you'll be able to check to see if ParkingEye are likely to have given up.

I suspect that there is a glitch in POPLA's software such that where an Operator has submitted no evidence within 21 days of an appeal being made, POPLA's web portal is updated to show that the Operator's evidence was submitted on 01/01/0001 (even though no evidence was received).

If, in 21 days' time you see the magic date 01/01/0001 on your POPLA portal, you'll know that you should be on to a winner.