Parking Ticket - Portishead Marina

4consumerrights

Add insufficient Entrance signage including lack of signage re the use of ANPR

The signs are different to the p&d section and this little car parking area is permit.

Additionally in the Bristol Evening Post there was a recent report that part the the Marina had been taken over by North Somerset Council

Edna_Basher

Hi tlw_18

I've had a stab at putting all of these points in some form of order (plus adding a point to remind POPLA that the Beavis case acknowledges that for cases of trespass, only nominal damages would be payable). I've also, split the inadequate signs point into 4 parts, with 4CR's point about signs / ANPR being included under its own sub-section.

Recently, we have had a few problems with POPLA forgetting to add our rebuttal to the case file. I recommend that when you send your rebuttal by e-mail to info@popla.co.uk you ask them to respond to confirm that they have added your rebuttal to the case file. Keep badgering them until you get this confirmation.

Dear POPLA Appeals Team,

POPLA Ref [606xxxxxxx] - Vehicle Registration [AA11AAA]
ParkingEye Ltd: Parking Charge Notice [xxxxxx/xxxxxx]

I write to confirm that I have now received a copy of ParkingEye’s evidence pack in respect of the above-detailed POPLA case.

For the sake of helping POPLA to conclude this case without delay, I attach my rebuttal of ParkingEye’s evidence.

Please respond to confirm that you have added this rebuttal to my case file.

Thank you for your cooperation.


Yours faithfully,



POPLA Ref [606xxxxxxx] - Vehicle Registration [AA11AAA]
Rebuttal of ParkingEye’s Evidence Pack: Parking Charge Notice [xxxxxx/xxxxxx]

The land is not relevant land for the purpose of POFA

In my submission to POPLA, I highlighted that the parking at Portishead Quays Marina is subject to Bristol City Docks byelaws and this site is therefore not relevant land.

Within its evidence pack, ParkingEye has made no attempt to dispute this and POPLA may therefore reasonably conclude that ParkingEye accepts that it has no statutory right to utilise the provisions of POFA to hold vehicles’ keepers liable for unpaid parking charges.

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

Within its evidence pack, ParkingEye has made no attempt to dispute my points regarding the failure of its Notice to Keeper to comply with the strict requirements of Schedule 4 of POFA. POPLA may therefore reasonably conclude that ParkingEye accepts that its Notice to Keeper did not comply with POFA.

ParkingEye has no standing or authority to pursue charges or to form contracts with drivers

Within its evidence pack, ParkingEye has included a scanned copy of a contract document which it claims provides proof that it has the Landholder’s authority to operate and issue Parking Charge Notices at this location.

However, the copy is of such poor quality that it is not possible to read much of its content. I refer you to the determination by assessor Nial Vivian in a similar case (i.e. POPLA Reference 6062785103) as follows:

"The appellant has stated that they do not believe the operator has the relevant authority of the landowner to pursue charges from or form contracts with motorists using the car park in question. Section 7 of the British Parking Association Code of Practice requires operators to own the land or to have written authority from the landowner to operate on the land. Upon reviewing the evidence, the operator has provided me with a copy of a signed contract. However, the quality of the document renders it unreadable, and as such I am not able to confirm that it is a contract between the operator and landowner confirming that the landowner has conveyed such authority to the operator".

POPLA may reasonably conclude that ParkingEye has not provided any clear evidence that it had the Landholder's authority to operate at this site.

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

ParkingEye has made no attempt dispute my point that this matter relates to an alleged trespass, not a breach of contract.

Nor has ParkingEye made any attempt to respond to my points highlighting how, in the case of ParkingEye Ltd v Beavis (“the Beavis Case”), the Supreme Court judges explained that had there been no contract between ParkingEye and Mr. Beavis, Mr. Beavis’ liability would have been limited to a small amount of damages for trespass.

In the absence of any denial by ParkingEye, POPLA may reasonably conclude that ParkingEye accepts that this matter was not a breach of contract but rather one of trespass and where a charge of £100 substantially exceeds the small amount of damages that may have arisen as a result of the alleged trespass.

ParkingEye’s car park signs were inadequate

In my submission to POPLA, I highlighted that the car park signs were inadequate; this is now confirmed by ParkingEye’s evidence park.

a) The signs were not properly lit

The pictures of the signage contained within the evidence pack were taken 1) in daylight and 2) up close to the signs. These pictures clearly show that there was no direct lighting of the signs, nor was there sufficient street lighting nearby.

The alleged trespass took place on Christmas Eve at around 8pm when it was dark. ParkingEye has not provided any evidence to demonstrate that its signs were properly illuminated during the hours of darkness. Nor has ParkingEye provided any evidence to demonstrate that its signs were at a reasonable height to allow drivers to read them in the dark.

Within its evidence pack, ParkingEye has included two additional pictures of the vehicle which were not included on the original Notice to Keeper. It is evident from these pictures that the car park was poorly lit; the vehicle registration number plate is only visible because of the vehicle’s own lights, not from lighting in the car park.

Based upon the available evidence, POPLA may reasonably conclude that the signs were inadequately displayed at the time of the alleged trespass.

b) The signs do not properly warn motorists of the purpose of the operation of the ANPR cameras

The signs do not properly warn motorists of the nature of the operation of the ANPR cameras nor do they properly explain what the data captured by the ANPR cameras will be used for. This is contrary to Paragraph 21.1 of the British Parking Association Code of Practice which 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. Signs at the car park must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

The car park signs provide this information only after a motorist has entered the car park, not before. Furthermore the information that has been provided is not prominently displayed, being included within the ”small print” on the signs inside the car park. Although with the naked eye it was impossible to read much of the writing on the pictures of the signs in ParkingEye’s evidence pack, by using the “magnify” function on my PDF reader I have been able to reproduce ParkingEye’s “small print” as follows:

"ParkingEye Ltd (Company No: 5134454) is authorised by the landowner to operate this private car park for and on its behalf. We are not responsible for the car park surface, other motor vehicles, damage or loss to or from motor vehicles or general site safety. Parking is at the absolute discretion of the landowner and the terms and conditions that apply are set out within this notice (the “Parking Contract”). By parking, waiting or otherwise remaining within this private car park, you agree to comply with these terms and conditions (the ”Parking Contract”) and are authorised to park, only if you follow these correctly, including making payment where directed, entering your registration details via the payment and/or permit systems. If you fail to comply, you accept liability to pay the fee for unauthorised parking (the “Parking Charge”). This Parking Contract shall form the entire agreement between the parties. By entering this private car park, you consent for the purpose of parking control and enforcement of the Parking Contract to: the capturing of photographs of the vehicle and registration by the ANPR cameras and to the processing of this data, together with any data provided via the payment or permit systems; correspondence; telephone; or in person, by ParkingEye Ltd and any authorized sub-contractor. A reduction of at least 40% of the Parking Charge will be available for a period of 14 days. Failure to pay the Parking Charge within this period will result in the full amount becoming payable. Where Parking Charges remain unpaid beyond 28 days, recovery charges in respect of further action may apply. A charge reflecting the cost to ParkingEye may apply for payments made with a credit/debit card”.


The condition that “By entering this private car park, you consent for the purpose of parking control and enforcement of the Parking Contract to: the capturing of photographs of the vehicle and registration by the ANPR cameras and to the processing of this data, together with any data provided via the payment or permit systems; correspondence; telephone; or in person, by ParkingEye Ltd and any authorised sub-contractor” is unenforceable. Even if this condition had been clearly brought to the driver’s attention, this would have been after the driver had already passed the ANPR cameras, not before.

c) The signs were not relevant, referring to a “Parking Contract” rather than trespass

I also draw POPLA’s attention to the fact that this “small print” is clearly a set of generic terms and conditions written for use in car parks where motorists have permission to park, subject to their agreement to ParkingEye’s “Parking Contract”. These terms are inappropriate for use in this particular car park because non-compliance is a matter of trespass rather than breach of contract. It is obviously impossible to form a “Parking Contract” with a motorist for whom parking is expressly forbidden.

Furthermore ParkingEye’s notices specify only that the data captured by its ANPR captured would be used for the purpose of enforcing the “Parking Contract”. The signs do not state that this data would be used to identify trespassers.

d) the signs failed notify the driver that ParkingEye intended to exercise its rights under POFA

In my initial submission to POPLA, I highlighted that I had 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 payment of the parking charge from the vehicle’s registered keeper (in accordance with the provisions of Schedule 4 of POFA) in the event that they remained unpaid by the driver.

This is now confirmed by ParkingEye’s evidence pack.

The establishment of keeper liability under POFA is not automatic; it is conditional upon a) the operator 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, motorists (in accordance with their rights under Paragraph 69 of the Consumer Protection Act 2015) are reasonably entitled to conclude that ParkingEye do not intend to use POFA.

It is of fundamental importance that nowhere on the car park signs did ParkingEye warn the driver that it would seek to rely upon Schedule 4 of POFA to claim payment of the Parking Charge from the registered keeper should the charge remain unpaid. From the motorist’s perspective, in accordance with the Consumer Protection Act 2015, the most favourable meaning of the statement that “Parking Charges incurred will, in the first instance, be notified to the registered keeper” is simply that the registered keeper will be made aware of the Parking Charges in order that they may then forward the details on to the driver to deal with. In the absence of any clear statement by ParkingEye to the contrary, any motorist reading the sign would be reasonably entitled to infer that ParkingEye was one of the many private parking companies that do not seek to rely upon the provisions of POFA to claim keeper liability.

tlw_18

Thank you so so much for all of your help! I really appreciate it. Hopefully POPLA will find in my favour!

Edna_Basher

It'll be a travesty if POPLA don't find in your favour.

In view of the problems being experienced by some other posters, you'll need to keep nagging POPLA until they confirm that they have added the whole of your rebuttal (i.e. all pages of your PDF attachment) to your case file.

tlw_18

They confirmed it so no worries there, just have to keep my fingers crossed now!

tlw_18

SUCCESS!!

Very pleased to report POPLA have deemed my appeal successful!

While the appellant has raised a number of grounds for appeal, my report will focus solely on the landowner authority. Section 7 of the British Parking Association (BPA) Code of Practice requires Operators to own the land or to have written authority from the landowner to operate on the land. The operator has provided a contract in response to this ground of appeal. I note the contract is dated 3 January 2013. The initial term states, a period commencing on the effective date and expiring after 12 months. From the evidence provided the contract appears to have expired and the operator has not provided any further evidence to show that the contract has been renewed. It is the responsibility of the operator to provide clear and concise evidence to show that the appellant has not adhered to the terms and conditions set out at the site. As such, I cannot confirm whether the operator has issued the PCN correctly.

Thanks so much everyone for all your help. Glad POPLA saw sense!

Redx

excellent news

please post the PPC, the site , plus the decision above and assessor name in the POPLA decisions thread at the top of the forum

you could add a url link to this thread too please, so people can find it if they want to in the future

again, well done

Umkomaas

tlw_18 wrote: »

SUCCESS!!

Very pleased to report POPLA have deemed my appeal successful!


Thanks so much everyone for all your help. Glad POPLA saw sense!

Please take the following action which will exact some revenge/pain on the PPC!

Please complain/write to the following:

1. DVLA.
Ask the DVLA to stop providing keeper details to the PPC for that particular site in view of the POPLA statement that they have no authority to operate on this land.

2. BPA.
Ask the BPA to confirm they will be issuing sanction points to the PPC in view of the POPLA statement.

Copy your POPLA decision, emphasise the statement that no authorisation exists, to both the DVLA and the BPA.

Well done on your successful appeal by the way. Please let us know what the outcomes of your complaints are. Post on this thread with the details when received.

It's imperative we stop these outfits in their tracks if they are flouting requirements placed on them by the BPA/DVLA/PoFA, in order to fleece the general public and profit from their misfortune - without prodding, neither the BPA nor DVLA will do tap all!

Here's another thread where the OP got stuck into this:

https://forums.moneysavingexpert.com/discussion/comment/69199071#Comment_69199071

Edna_Basher

Excellent - well done tlw_18 :beer:

Given the number of strange decisions that POPLA have been making recently, I'm very pleased that your case has worked out as it should - i.e. with a successful outcome.