Parking eye, hotel.

x_toonangel_x

Hey everyone.

I've had two private parking fines appealed & won so far, both in hospitals when taking my son for surgery. (First time because I parked on hatched markings but they were faded and second time because they'd put up a brand new permit holders only sign which was small & nowhere near where I had parked so easy to contest)

In july I got one from parking eye after parking in a hotel car park next to my works head office. The car park for work was full so I parked there without thinking and never noticed a sign.

I appealed to parking eye as usual and they've now sent over the popla info after rejecting it, however my husband has thrown away the original letter with the photo of my car and because our head office is the other end of the country I can't simply go there to see the parking signs or see where they're located in respect of where we parked.

Wondering if I should just pay the £60 if I don't have a reason to contest? It's giving me a headache is this one! x

DoaM

You don't need to see the sign or photo ... you contend that the signage was insufficient and in breach of the BPA code of practice, and it would be for PE to prove otherwise. Your POPLA appeal would also have several other appeal points ... go to the POPLA Decisions thread, start at the end and work back - you'll find links to lots of examples you can crib from. (No templates though - there never has been for POPLA appeals).

PS - it's not a fine, it's an invoice. Keep thinking of it as an invoice and it may help you deal with this.

Fruitcake

No of course you shouldn't pay.

As advised, look at the most recent successful appeals from the POPLA Decisions thread and pick out all the bits that are relevant. These should normally include, not the landowner, no standing to issue charges, inadequate signage, non POFA 2012 compliant NTK (assuming you didn't give away the driver's details with your initial appeal.)

Post your draft here for the experts to check over before you submit it.

x_toonangel_x

Thank you. Hows this?


POPLA REF: ...............
PCN REF: ................

Dear assessor,

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

1) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability
2) Ambiguous, unclear, and misleading signage.
3) No standing or authority to pursue charges nor form contracts with drivers.
4) No 'relevant obligation' nor 'relevant contract' under Schedule 4 of the POFA.
5) I rely on the binding authority in Vine v Waltham Forest which was a Court of Appeal judgment, about a driver not seeing the terms and not deemed bound by them.


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

The requirements of Schedule 4 POFA are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt. The BPA Ltd AOS Code of Practice (version 5, October 2015) supports the need for strict compliance (para 21.5 refers). All Parking Services UK Ltd has however failed to comply with the statutory requirements as followed.

a) In regards to paragraph 8(2)(a) of Schedule 4, POFA 2012, the 'period of parking' is not 'specified', only the time and date the parking charge was issued. It does not specify the period of parking as demanded under POFA 2012 paragraph 8(2)(a) and paragraph 7(2)(a). In fact the observation time is not specified. The Notice does not state the period of parking, merely the time of the alleged contravention.

b) The Notice to Keeper does not, as per Paragraph 8(2)(c), state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f), with 7(2)(b) requiring that it “describe(s) those charges, the circumstances in which the requirement arose”. The “breach” was alleged to be for “parking for longer than the maximum period permitted”, however it does not make clear to the keeper what the maximum period permitted was, and how the driver had (allegedly) exceeded this.

b) Paragraph 8(2)(e) requires that the Notice to Keeper must “state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—(i) to pay the unpaid parking charges; or (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver”. The Notice to Keeper clearly fails to comply with this requirement.

c) Paragraph 8 (2)(g) requires the operator to inform the keeper of any discount offered for prompt payment. The ‘Notice to Keeper’ fails to offer any discount and is therefore neither in compliance with the strict requirements of POFA nor with the BPA Ltd AOS Code of Practice (version 5, October 2015) paragraph 21.10.

All Parking Services UK Ltd have failed to comply and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.



2) Ambiguous, unclear, and misleading signage

Since receiving the notice to keeper I have been to review the signs available in the car park to establish if this condition was made clear before parking.

I noted that the signs are located sparsely in the car park, and the actual “terms and conditions” (T&C) are printed in font so small that it is almost impossible to read when I went to look at the evidence for this appeal. The driver has notified me that the area where the car was had no signs at all and for a vehicle containing 3 passengers that day, I find it shocking that not one of them noticed any signs to state it was pay & display.

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, Parking Eye 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.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name.

In addition, Section 7.3 states:

“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.''

I therefore put Parking Eye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Parking Eye and the landowner, not 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.



4) No 'relevant obligation' under Schedule 4

No promise was made by the driver to move the car because of the ambiguity of the sign.

There can be no keeper liability without a 'relevant obligation' giving rise to a requirement for a driver to pay parking charges. This requirement is defined in Schedule 4 as follows:

“relevant obligation” means—
(a)an obligation arising under the terms of a relevant contract; or
(b)an obligation arising, in any circumstances where there is no relevant contract, as a result of a trespass or other tort committed by parking the vehicle on the relevant land;

An 'obligation arising from a relevant contract' would be one where the terms are transparent, prominent and clearly communicated to the driver before parking. Neither was this explained in the Notice to Keeper, but in the Notice of Rejection, far too late to be imported into any contract or retrospectively create any obligation.

A contract is formed in a car park only if terms are clear and accepted/known before parking. This cannot be found to be the case in a car park where the signs are not clearly visable.
Schedule 4 is specifically dependent in paragraph 3 (below) upon 'adequate notice' of the parking charge being communicated to the driver in advance and this was not the case:

For the purposes of sub-paragraph (2) “adequate notice” means notice given by—

(b) ...the display of one or more notices which— (i) specify the sum as the charge for unauthorised parking; and

(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

That would require clear and prominent signs throughout the site, carrying wording that is transparent and legible in low light, non-conflicting, and with the terms and 'charge' in large letters (in the Beavis case this was 96 point in bold font).


5) I rely on the binding authority in Vine v Waltham Forest CA [2000] about a driver not seeing the terms and not deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://imgur.com/a/AkMCN

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.

The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking. There was never any suggestion that the plaintiff was other than a truthful witness and the clamping fee extorted from her under no lawful excuse was an act of trespass and the charge had to be refunded.

That case supports and upholds my appeal and it is a Court of Appeal judgment, binding on lower courts, which is far more relevant than the Beavis case in this instance where All Parking Services UK Ltd's interest is nothing beyond the basic aim to punish/fine any alleged defaulter, without making the terms clearly legible from a driver's seat before parking.

Where a parking charge is penal with no legitimate interest extending beyond claiming restitutionary damages, it cannot be saved by the Beavis case and the penalty rule remains firmly engaged. This charge must be deemed unenforceable and the PCN not properly given.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

Yours faithfully

Redx

remove your name and the popla number and pcn reference number etc (using edit)

x_toonangel_x

Redx wrote: »

remove your name and the popla number and pcn reference number etc (using edit)

Thank you, I literally realised and removed it just as you commented xx

Redx

you appear to have more then one parking company listed in the appeal, please correct it to only name the correct one for your case

ie:- is 3) wrong ?

DoaM

Can you post a redacted copy of your initial appeal please? We need to see if you identified the driver in any way (which could nullify point 1).

pappa_golf

your draft POPLA appeal v PE wrongly cites para 8 of the POFA and tries to 'get' PE on 'no keeper liability' at POPLA.


It should of course be para 9 but IMHO, only if PE have sent the PCN too late. 'New POPLA' invariably say PE's PCNs are compliant, so no point using that appeal point at all, unless the PCN very clearly posted late.




says a "friend" in the know

The_Deep

In july I got one from parking eye after parking in a hotel car park next to my works head office. The car park for work was full so I parked there without thinking and never noticed a sign.

So you parked in a hotel car park although you were not a guest? Do you not think that this was unwise?

x_toonangel_x

DoaM wrote: »

Can you post a redacted copy of your initial appeal please? We need to see if you identified the driver in any way (which could nullify point 1).

I used the one from sticky thread under BPA member, I didn't identify the driver x

Redx wrote: »

you appear to have more then one parking company listed in the appeal, please correct it to only name the correct one for your case

ie:- is 3) wrong ?

Whoops thank you, have amended in OP. x

pappa_golf wrote: »

your draft POPLA appeal v PE wrongly cites para 8 of the POFA and tries to 'get' PE on 'no keeper liability' at POPLA.


It should of course be para 9 but IMHO, only if PE have sent the PCN too late. 'New POPLA' invariably say PE's PCNs are compliant, so no point using that appeal point at all, unless the PCN very clearly posted late.




says a "friend" in the know

Thank you, shall I remove para 8 completely then? x

The_Deep wrote: »

In july I got one from parking eye after parking in a hotel car park next to my works head office. The car park for work was full so I parked there without thinking and never noticed a sign.

So you parked in a hotel car park although you were not a guest? Do you not think that this was unwise?

In hindsight, yes..but i was late and just parked there not thinking. I'm not very bright clearly!