ParkingEye charge - Pokemon hunting

Coupon-mad

Search the forum board for 'ParkingEye POPLA'.

And read the POPLA Decisions thread posts from the end (not from the start!). I have just suggested there, a detailed appeal point re 'unclear signage' as long as the signs in this case of yours, are not the SAME as the yellow/black ones in the Beavis case. And there is a new defence point to place as #2 (about no proof that the individual they are pursuing is the driver liable). That goes straight after the #1 which will be about 'not relevant land/byelaws land so no keeper liability'.

Then you continue with the usual other appeal points as shown in other threads you find when you do the suggested exact keyword search.

Edna_Basher

Here’s suggested wording for Point 1 (Not Relevant Land)


1) Parking at Southampton Town Quay is subject to statutory control

Paragraph 3(1) of Schedule 4 of POFA 2012 states that 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.

Although ParkingEye’s PCN makes no mention of Southampton Town Quay being subject to statutory control, parking at this site is subject to Associated British Ports Southampton Harbour Byelaws 2003 (“the ABP Byelaws”); this location is therefore not relevant land for the purposes of POFA 2012.

I include with my submission a copy of the ABP Byelaws, drawing POPLA’s attention to Part IV (Goods and Road and Rail Traffic), in particular the terms of Paragraphs 37 and 39 which specifically refer to leaving vehicles unattended (i.e. parking) thereby confirming that parking on the Port of Southampton’s land is subject to statutory control.

I also draw POPLA's attention to the map on Page 20 of the ABP Byelaws which confirms that Southampton Town Quay lies within the boundaries of the Port of Southampton for the purpose of the ABP Byelaws. I also include a more detailed ABP map which defines more clearly the boundaries of the Port of Southampton.

POPLA has previously determined that Southampton Town Quay is not relevant land; I refer you to POPLA case ref.6060755093.

Therefore ParkingEye has no lawful right to rely upon POFA 2012 to claim unpaid parking charges from the vehicle’s keeper.



You can download copies of ABP Byelaws and map at:

http://www.abports.co.uk/admin/content/files/ABPLegal/SOUTHAMPTON%20HARBOUR%20BYE-LAWS%202003.pdf

http://www.abports.co.uk/admin/content/files/assets/Ports/Southampton/Southampton%20Port%20Plan.pdf

More details of POPLA case ref.6060755093 are shown on the MSE POPLA Decisions thread at:
http://forums.moneysavingexpert.com/showpost.php?p=68454796&postcount=1711

You could also add a reference to a similar “New” POPLA decision by assessor Eileen Ioannou on this thread:
https://forums.moneysavingexpert.com/discussion/5429769

Coupon-mad

OK, that gives you point #1 with thanks to Edna Basher.

I've given you (above) info of where to find point #2 about the individual not being evidenced as the liable driver.

Then you continue with the usual other appeal points as shown in other threads you find when you do the suggested exact keyword search.

x_raphael_xx

mamamia11 wrote: »

The small print on one of the notices reads as follows "By parking, waiting or otherwise remaining within this private car park,.

Would this not include driving around the site too?

mamamia11

Thank you all so much for your help so far in this matter. I have now cobbled together my best attempt at a POPLA appeal, and would be very grateful if someone could run an eye over it. I am confident regarding point #1 (thank you Edna Basher), but concerned by POPLAs ‘Adjournment of cases involving Byelaws’ – not sure what the implications are. Point #2 suggested by Coupon-mad is included verbatim I’m afraid, having trouble getting my head round that one. Point #3 I am again confident about. And point #4 I believe has won in the past so worth a shot. I’m not sure how to sign it off? Any comments/corrections gratefully received!

Parking Charge Notice – xxxxxx/xxxxxx
Issued by ParkingEye
POPLA Ref: xxxxxxxxxx

I am writing to you to lodge a formal appeal against a parking charge notice (PCN) sent to myself as registered keeper of a vehicle, in respect of an alleged breach of parking conditions at Southampton Town Quay (short stay) car park on 20th July 2016.

I appeal to you that I am not liable for this parking charge on the basis of the following points:

1) Parking at Southampton Town Quay is subject to statutory control
2) No proof that the individual they are pursuing is the driver liable
3) ParkingEye’s Notice to Keeper failed to meet the mandatory delivery timescales laid down by POFA
4) ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

1 Parking at Southampton Town Quay is subject to statutory control

Paragraph 3(1) of Schedule 4 of POFA 2012 states that 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.

Although ParkingEye’s PCN makes no mention of Southampton Town Quay being subject to statutory control, parking at this site is subject to Associated British Ports Southampton Harbour Byelaws 2003 (“the ABP Byelaws”); this location is therefore not relevant land for the purposes of POFA 2012.

I include with my submission a copy of the ABP Byelaws, drawing POPLA’s attention to Part IV (Goods and Road and Rail Traffic), in particular the terms of Paragraphs 37 and 39 which specifically refer to leaving vehicles unattended (i.e. parking) thereby confirming that parking on the Port of Southampton’s land is subject to statutory control.

I also draw POPLA's attention to the map on Page 20 of the ABP Byelaws which confirms that Southampton Town Quay lies within the boundaries of the Port of Southampton for the purpose of the ABP Byelaws. I also include a more detailed ABP map which defines more clearly the boundaries of the Port of Southampton.

POPLA has previously determined that Southampton Town Quay is not relevant land; I refer you to POPLA case ref.6060755093.

Therefore ParkingEye has no lawful right to rely upon POFA 2012 to claim unpaid parking charges from the vehicle’s keeper.

2 The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

3 ParkingEye’s Notice to Keeper failed to meet the mandatory delivery timescales laid down by POFA

Contrary to the requirements of Sch.4 Para 9 (4) (b), the Notice to Keeper (NTK) was not delivered within the relevant period as defined in Sch.4 Para 9 (5).

Date of alleged contravention was Wednesday 20th July 2016.

Notice must be delivered within a period of 14 days beginning with the day after that on which the specified period of parking ended, ie by Wednesday 3rd August (POFA Para 9 (5))

A notice sent by post is to be presumed to have been delivered on the second working day after the day on which it is posted (POFA Para 9 (6)). As the Date of Issue on the PCN is Wednesday 3rd August the delivery date can be presumed to be no earlier than Friday 5th August 1916, 16 days after the alleged incident.

The NTK was delivered outside the 14 day maximum period allowed. As such, Keeper liability cannot apply.

POPLA please note that this 14 day period is ONLY stipulated in the POFA 2012 has nothing to do with any other 14 day period – eg there is a mere guideline ‘target’ mentioned in the BPA Code of Practice regarding posting PCNs after receiving DVLA data. This was the subject of an erroneous POPLA decision in July 1016 by an Assessor with initials R.E. and that procedural error is the subject of a formal complaint already in the public domain. POPLA Assessor, please consider ONLY the POFA for this appeal point as that is the applicable law and NTK is, as a matter of irrefutable fact, deemed delivered too late.

4 ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges

I do not believe that ParkingEye has any proprietary interest in the land such that it has no standing to make contracts with drivers in its own right, or to pursue charges for breach in its own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at Court level.

I contend that ParkingEye merely holds a basic licence to supply and maintain signs and to post out 'tickets' as a deterrent to car park users. I therefore require ParkingEye to provide POPLA and me with an unredacted, contemporaneous copy of the contract that it holds with the landowner. This is required so that I may be satisfied that this contract permits ParkingEye to make contracts with drivers in its own right and provides it with full authority to pursue charges, including a right to pursue them in Court in its own name.

For the avoidance of doubt, a witness statement to the effect that a contract is or was in place will not be sufficient to provide the necessary 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.). A witness statement would not comply with section 7 of the BPA Code of Practice as the definition of the services provided would not be stated in such a vague template document.

Edna_Basher

This is an interesting dilemma for POPLA.

Its website states that it has decided to adjourn all cases on which the parking operator has asked the motorist to make a payment in respect of alleged breach of Byelaws with this decision being made following complaints to POPLA and ISPA that POPLA has no authority to look at these appeals.

However, in this instance ParkingEye isn’t asking the motorist to make a payment in respect of alleged breach of Byelaws – the PCN is based on ParkingEye’s usual allegation of a breach of “parking contract”.

Coupon-mad

x_raphael_xx wrote: »

Would this not include driving around the site too?

It would if it was a transparent term and not in illegible small print no driver can know about.

I have now cobbled together my best attempt at a POPLA appeal, and would be very grateful if someone could run an eye over it.

Looking good - nice cobbling so far - but you've missed out any argument about the signs. We always talk about unclear signs - you can use the template verbatim from the POPLA Decisions thread*, just under where you found point #2 (which is fine coped verbatim and makes sense to me and will be understood by POPLA because I used their own words back at them).


*the one I wrote this past weekend, about unclear signs...however if 'your' signs here are the SAME yellow/black uncrowded wording signs as in the Beavis case then you will have to edit and prune some of the appeal point to remove where it says 'these signs are not like the Beavis ones...'. Have a look, the template appeal point about unclear signs shows a link to the sign used in the Beavis car park which may or may not be the same type.

mamamia11

I have found a picture of the sign at Town Quay:
http://www.townquay.com/admin/content/files/parking/Town%20Quay%20Parking%20Eye%202016%20prices.pdf

and this is a screen shot of the sign in situ:


My thoughts are (a) that there is far too much information on the sign for a motorist to take in on entering the site, (b) the lettering on the terms and conditions in particular is far too small, (c) this was the ONLY example of this particular detailed sign on the site, (d) the only mention of 'private property' is in small letters right at the bottom, and (e) the statement 'No parking in red zone bays (Mon to Fri 6am to 7pm) would seem to suggest that it's OK to park there outside those hours.

Any comments gratefully received.

mamamia11

On a separate matter, I am concerned that I have not yet received a ParkingEye decision and POPLA code for the second alleged offence. Both appeals were submitted online on 16th August. Should I be contacting them at this stage, or resending the missing appeal? I believe they have 35 days to respond, which would be by Tues 20th September.

Umkomaas

mamamia11 wrote: »

On a separate matter, I am concerned that I have not yet received a ParkingEye decision and POPLA code for the second alleged offence. Both appeals were submitted online on 16th August. Should I be contacting them at this stage, or resending the missing appeal? I believe they have 35 days to respond, which would be by Tues 20th August.

20th August? That's only 4 days after 16th August (at least where I come from!).

Did you mean 20th September?