Wright Hassle - Southampton Harbour Byelaws

Randell82

Hi All

I have today received my letter from Wright Hassle and have got familiar with the other threads. I am responding with my original appeal but wish to add in new information.
I recently come across a POPLA case which was successful mid 2015 based on Southampton Harbour byelaws. The car park refers to the same one i was in

Below is the extract that was taken from the appeal letter. This unfortunately doesn't make any sense to me and i wonder if anybody knows if it is still a valid argument.

Also on a previous thread from me i was asked if i had received a contract from the land owner and parkingeye. i have found the original evidence pack and all i have is a witness statement from the estates manager on behalf of the leaseholder. i appreciate it is difficult to comment on this without seeing it but a 'witness statement' doesn't sound like it should be acceptable

Southampton Leisure World car park has no keeper liability - this is not “relevant land”.
The Operator has 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). No keeper liability is likely to apply at all, due to the Associated British Ports' Southampton Harbour Byelaws 2003, which are attached (the byelaws), taking precedence and rendering this land outwith POFA and outwith 'registered keeper liability'. I refer you to Schedule 4 section 3(1)(c) of the Protection of Freedoms Act, and byelaw 39. I also refer you to the map at page 20 of the byelaws, evidencing that Leisure World is an area to which the byelaws apply.

Schedule 4 of the POFA 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 Leisure World and the surrounding port is covered by byelaws (statutory control) it clearly falls under 3(c) and is therefore exempt from POFA 2012.

For The Operator 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 they contend otherwise then I expect them to provide POPLA with contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the byelaws cease to apply around Leisure World.


The byelaws make it very clear that the penalties for parking on the land designated is solely in the gift of the Criminal Courts and as such the operator have no standing whatsoever to enforce civil parking charges or parking systems. Additionally, the byelaws also make clear that the Port of Southampton to which they apply includes Leisure World car park as shown on page 20.

It is my understanding that ParkingEye are aware of this issue following POPLA Reference 6060755093.

The full text of this determination is set out below.

Reasons for the Assessor’s Determination

It is the Operator’s case that their Terms and Conditions of parking (“the Terms”) are clearly displayed throughout the above named site. They submit the Appellant breached the Terms by failing to purchase the appropriate parking time and therefore is liable to pay the parking charge.

The Appellant has made several very strong submissions however it is only necessary to consider determine one area of dispute for the purposes of this appeal. This is the submission that the Operator has no authority from the Landowner to issue parking charges on the land.

The Operator has not provided a copy of a contract between themselves and the Landowner which authorises them to operate at the site and to issue parking charges on the Landowner’s behalf; nor have they provided a signed witness statement confirming the existence of such a contract. Therefore, I cannot find the parking charge to be enforceable by the Operator in this case.

I think it is important to add that I also accept the Appellant’s submission that the land is not ‘relevant land’ for the purposes of the Protection of Freedoms Act 2012 (“POFA”) because this was their main submission. I find that the land is subject to statutory control for the reasons given by the Appellant and therefore, by virtue of paragraph 3(1)(c) of Schedule 4 of POFA, the Operator has no right to recover under POFA.

Accordingly, I allow the appeal.

Ricky Powell
Assessor

Edna_Basher

Hi Randell82

The POPLA Case 6060755093 you quote is one of our successes against ParkingEye. This related to an incident at the car park at Southampton Town Quay (by the Red Jet and Red Funnel ferry terminals). Parking on this land is subject to ABP Southampton Harbour Byelaws meaning that only the vehicle's driver can be held liable for parking charges.

Thus, the Byelaws argument will only be useful to you if you appealed as the vehicle's keeper rather than as the driver.

Although you state that your case relates to the same car park (i.e. Town Quay), you also refer to Southampton Leisureworld which is located further along West Quay Road. Based on the map contained within the byelaws, I'm pretty sure that the car park at the Leisureworld complex falls outside of the Port of Southampton's boundaries.

Does your case relate to Town Quay or Leisureworld?

Randell82

Hi Edna

Thanks for the reply

It is actually my girlfriends car who was also the driver at the time.

In regards to the car park, I wasn't aware it relates to town Quay, the extract was a direct copy & Paste from the forums so assumed it was leisure world based on the opening line (i was parked in Leisure world car park which as you suggest is further up).

Should i therefore assume that this isn't relevant in my case and ignore it or stick it in and hope for the best?

i'm struggling to find any other angles to appeal, basically the car park allows 4 hours free parking but you have to put your number plate into a machine which we didn't do. we were there a total of 25mins

Umkomaas

basically the car park allows 4 hours free parking but you have to put your number plate into a machine which we didn't do. we were there a total of 25mins

Well that differentiates it from Beavis insofar as this is not a charge for an overstay but a penalty for failing to follow instructions. It is quite clear then that the Beavis Judgment is actually helpful to you in confirming that the penalty clause is not disengaged in your case.

You need to read up on this and develop draft Beavis dismantling paragraphs for us to look at before firing it off to WHOPLA! Have you read this by Coupon-mad?

http://forums.moneysavingexpert.com/showpost.php?p=70486655&postcount=8

And this from the Parking Prankster?

http://parking-prankster.blogspot.co.uk/2016/04/wright-hassall-begin-to-hear-stayed.html

Redx

Randell82 wrote: »

i'm struggling to find any other angles to appeal, basically the car park allows 4 hours free parking but you have to put your number plate into a machine which we didn't do. we were there a total of 25mins

all the current threads with advice have been grouped together in one reply by me in here

https://forums.moneysavingexpert.com/discussion/5336635

this includes some of the links you were pointed at

dazster

Exactly. The legitimate interest being protected per Beavis is the supposed need for a regular turnover of customers. Profit from simple errors or oversights is not a legitimate interest therefore the charge remains an unenforceable penalty.

Not that WH will care.

Edna_Basher

Randell82 wrote: »

I have found the original evidence pack and all I have is a witness statement from the estates manager on behalf of the leaseholder. I appreciate it is difficult to comment on this without seeing it but a 'witness statement' doesn't sound like it should be acceptable.

I agree that witness statements shouldn't be acceptable as valid evidence (especially those which have been pre-printed by the Operator and are not even on the landowner's own letterhead). However, new POPLA seem happy to accept these and I'm sure that Wright Hassall will be no different.

I have a pretty good idea what your witness statement will have looked like.;) Presumably it was written in the name of Rank Group Gaming Division Limited?

It's not too late to send a complaint to Henry Birch, CEO, The Rank Group Plc, Statesman House, Stafferton Way, Maidenhead SL6 1AY, asking him to instruct his company's agent, ParkingEye Limited to cancel this parking charge explaining how it is grossly unfair for genuine customers to be penalised to such an extreme level simply for not correctly entering their registration details at the terminal - especially when ParkingEye's instructions to customers are unclear.

Randell82

ok i have come up with the below response. does it appear ok or there any glaring error's.
to re-iterate i stayed 25 mins in a 4 hour free car park but didn't put my car reg into the machine. if feels like i should focus on this more but im sure im not going to win on moral grounds


I am the registered keeper of the vehicle related to the parking charge notice (reference above).
I contend that I am not liable for the parking charge on the grounds listed below and request that they are all considered.

1) Your reference to ParkingEye vs Beavis.
2) At no point did the driver of the vehicle park in a parking Bay
3) Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
4) No evidence to show that the APNR system is reliable.
5) The signage was insufficient and was non-compliant with the BPA CoP
6) Unlawful Penalty Charge
7) Submission of further evidence from the Operator.

1) Your reference to ParkingEye vs Beavis

I would like to re-iterate that the allocated free parking is 4 hours and the driver was in the car park for a total of 25minutes so there are some fundamental differences between Beavis and this appeal. I am purely being penalised for a simple error.
The legitimate interest being protected per Beavis is the supposed need for a regular turnover of customers. Profit from simple errors or oversights is not a legitimate interest and therefore the charge remains an unenforceable penalty.

I refer to your letter dated 07/04/2016 (your reference “POPLA”).
The Operator has not attempted to relate their case to that of ParkingEye v Beavis, and to therefore justify their charge. It is their responsibility to make their case. As they have not, there is therefore nothing for me to rebut. I content it is not the assessor’s job to make the case on behalf of the operator.
The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. On Nov 4th they tweeted that the judgment was taking in account use of this particular car park & clear wording of the notices.

2) At no point did the driver of the vehicle park in a parking Bay

At no point did the driver of the vehicle park in a allocated parking bay therefore no loss of revenue can be charged. This also brings into dispute how signage can be read when the driver was continuously driving and therefore no contract be be entered into. I refer you to the previous court dispute between ParkingEye and Dave Hotchin (April 2014) who drove around a car park for 30minutes looking for a space, the judge ruled in favour of Mr Hotchin, saying that the 30minutes his wife spent driving around the car park did not constitute ‘parking’. The judge said that ParkingEye’s automatic number plate recognition evidence only showed the Hotchin’s time of entry and exit to the car park – not the time parked.
i therefore invite parkingeye to provide video evidence of the vehicle occupying a parking space

3) Failure to provide the contract to evidence that Parking Eye has any Standing or Authority to pursue charges or form contracts (Locus Standii)
ParkingEye has not produced any evidence to show that they have any legal right to issue charges on behalf of the landowner. They have provided a witness statement but not any of the requested detail to show detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). There is also no proof that the alleged signatory on behalf of the landowner has ever seen the relevant contract or, indeed, is even an employee of the landowner. It is my contention that this witness statement should be disregarded as unreliable, not proving full BPA compliance and is not sufficient to prove that Parking Eye have the necessary legal standing at this location to bring a claim in their own name nor to form any contractual relationship between the landowner and motorists.
I also refer to the fact that the “old” POPLA service ALWAYS found in favour of the appellant where the PPC had not proved that they had the authority of the landowner, in accordance with Section 7 of the BPA Code of Practice. Please note that this practice included disregarding any evidence not shown to an appellant, so the operator cannot add it now for Wright Hassel to consider. The Operator has not shown a full unredacted copy of the contract that allows them to act (as detailed above).

For clarity, the BPA Code clearly states that
“The written authorisation must also set out:
a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d who has the responsibility for putting up and maintaining signs
e the definition of the services provided by each party to the agreement”

ParkingEye has not provided the adjudicator any evidence to show that they have authority to issue charges in line with the BPA Code. The Operators evidence fails to show any of the BPA requirements then the omissions must be interpreted in the way which favours the consumer. I request that you uphold my appeal on this point.

In addition, I refer to POPLA case reference 1771073004 where the assessor ruled that a witness statement was not valid. This witness statement, based on the template provided by the POPLA Lead Adjudicator, concerned evidence which could have been produced but was not. This is exactly analogous to the current case if the operator produces a witness statement regarding contract documents between he operator and the landowner; the alleged contract is a document which the operator could produce (if it exists) but chooses not to. I request therefore that the “new” POPLA is consistent with the “old” POPLA scheme in its processes and also rules any witness statement produced by the operator invalid.


4) No evidence to show that the APNR system is reliable.
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
ParkingEye has not provided any evidence to show that their system is reliable, accurate or maintained.


5) The signage was insufficient and was non-compliant with the BPA CoP

I would bring your attention to the signage allocation and site overview contained in the evidence pack supplied by Parkingeye and more specifically to sign type 6. This is the main sign that confirms registration details are to be entered inside the building. The signage allocation confirms that there are only 2 of these signs in a car park of 800 spaces, this is an insufficient quantity in order to fully inform any or all customers of their obligations and the so called contract entered into.

I also believe all signage on site is non-compliant. The signs are badly placed, full of overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and the photo evidence supplied by Parkingeye to POPLA confirms this. Even with pictures taken at a closer range than inside a vehicle they are still un-readable. The pictures dont give a clear indication of the angle or hight of the signs.


There is also no clear signage on entrance to the premises, Appendix B of the BPA Code of Practice 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.

I contend that the signs and any core parking terms ParkingEye are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

6) Unlawful Penalty Charge

The carpark in question is free for the first four hours and then £1 for each additional hour up to a maximum £5. The £100 charge is punitive and not any representation of any loss incurred.
It fails Lord Dunedin's four tests for a penalty which the Supreme Court Judges in the Beavis case confirmed remains the relevant and appropriate test in standard financial contracts - like this one - where 'restitutionary damages' are quantifiable (in this case at £0 - this is indisputable and there are no Beavis 'complex contract' similarities. The Court of Appeal stage Judges found the Beavis scenario to be 'entirely different' from this exact kind of 'economic transaction' pre-defined charge contract).

7) Submission of further evidence from the Operator.
Again I refer to your letter dated 07/04/2016 (your reference “POPLA”), specifically where you state that any further evidence that I supply will be submitted to the Operator “..so that they may provide their comments. We will then make a decision on the Appeal”. I quote from the Lead Adjudicator Henry Greenslade’s Final Report (page 3):
“At POPLA, Assessors consider the evidence produced by each party, all of which evidence the other party has the opportunity to see and comment upon”
and again from the 2015 Annual Report:
“…it is certainly a basic principle of a fair appeals service that each party is given the opportunity to see the other party’s case and to comment upon it. This is the position at POPLA. Appellants should obviously receive the operator’s evidence in its entirety.''
I expect that Wright Hassall will honour the same service that I signed up for under the “old” POPLA scheme. I expect that I will receive from the Operator their response to this additional information. Can you please confirm that this is the case.

In addition, the lead Adjudicator also stated (again from page 3 of the Final Report) that “I might add that each case is carefully considered, not by an anonymous decision maker but rather by a named Assessor. I really do not see how anything less could be considered fair and open. Assessors at POPLA have no contact with parties or with the BPA, who are in fact located in a different part of the country. Quite simply, we are as completely removed and independent of the BPA …””
I put it to you to evidence that Wright Hassall are going to comply with the findings of the Lead Adjudicator and submit the name of their adjudicator and to show that Wright Hassell are independent of both the BPA and the Operator.

Coupon-mad

6) Unlawful Penalty Charge

The carpark in question is free for the first four hours and then £1 for each additional hour up to a maximum £5. The £100 charge is punitive and not any representation of any loss incurred.
It fails Lord Dunedin's four tests for a penalty which the Supreme Court Judges in the Beavis case confirmed remains the relevant and appropriate test in standard financial contracts - like this one - where 'restitutionary damages' are quantifiable (in this case at £0 - this is indisputable and there are no Beavis 'complex contract' similarities. The Court of Appeal stage Judges found the Beavis scenario to be 'entirely different' from this exact kind of 'economic transaction' pre-defined charge contract).

The above makes little sense to me (£0 isn't a quantifiable sum) but I'm tired after a busy work day. Hopefully others can assist in the morning; don't rush to email it early. Have a read of this one and use some quotes from Henry Greenslade of POPLA and more quotes from the Beavis case:

https://forums.moneysavingexpert.com/discussion/5445602

to re-iterate i stayed 25 mins in a 4 hour free car park but didn't put my car reg into the machine. if feels like i should focus on this more but im sure im not going to win on moral grounds

Maybe you should add more about that but not about 'no loss'. More about the fact the driver never had the requirement fairly drawn to his attention, at all. He was oblivious to the reuirement, not from want of being observant in any way, purely from want of ParkingEye announcing it in a way that meets Lord Denning's 'red hand rule'.

Did you admit already who was driving?

Were you a genuine customer?

Your focus should be on the failure of PE to make the terms and the obligation for customers to input their VRN crystal clear - and they did not. No customer would deliberately choose to incur a penalty in a FREE car park by deliberately and wantonly 'refusing' to input their VRN. It is clear that the driver had no idea and this obligation was certainly not drawn to his attention in the most prominent way.

Use this as well as the linked thread above:


It is clear that signage plays a big part in the Beavis case and that the basis the contract was not unfair was due to the 'clear and plentiful' signage:

Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed.''

Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

This was absolutely not the case regarding the unknown and non-prominent term requiring a driver to enter a VRN, even though the car park was free.

Randell82

Morning all

regarding point 6. i was trying to get across that since this isn't an overstay scenario there was no loss incurred to anyone.

I'll try and amend the draft using your additional points

Fruitcake

I only skim read so I may have missed it, but have you included the point that parking lie's signage must state the purpose for which the ANPR data will be used? This is a BPA and ICO requirement.

You should remove some of the information from your post immediately before mine. We only need to know that you were driving around the car park. In other words, only information that helps your case.

Parking scumpanies read this forum.