Should I pay PCN

Coupon-mad

First question, does the PCN have the paragraph about 'POFA 2012 and keeper liability after 29 days'? OR is it a version that was sent after 14 days and has a blank space (missing paragraph) near the bottom of the front page?

Secondly, stronger template appeal points are in the penultimate page of POPLA Decisions, whcih will at least beef up your points and make it much longer (which PE do not like bothering with!).

AJRawlins

It has the POFA 2012 and keeper liability I will take a look at the template now.

Coupon-mad

I like this bit but I do like the 'throw the kitchen sink at it' approach to POPLA appeals, which does work much of the time:

They are positioned further inside the entrance and would only be visable to the driver if they happened to be driving a convertible with the roof down and quite clearly this is not the case in the images.

Sounds like signage and the Grace Period (if only there minutes) are your strong points here. You could also add a point that there can be no legitimate interest, à la 'Parking Eye v Beavis case', where the landowner has confirmed that the driver was using the car park with full authorisation*.

Have a look at the template appeal point posts in 'POPLA Decisions' including:

2341
2342
2343
2345 (but POPLA tend to think the ParkingEye 'POFA 2012' version is OK)

and for the 'differs from Beavis, no legitimate interest in charging when authorised by the landowner' argument:

*2361 (hat tip to IanMSpencer for the way that one is worded). Would need adapting but makes sense to have something along those lines.

AJRawlins

Ok thank you coupon-mad for all the help, this is now what I have to go with don't think I can add anything else.

POPLA Ref No.xxxxxxxxx
I am the registered keeper and I wish to appeal a recent parking charge from Parking Eye Ltd,. The charge is levied despite the driver not being identified.
1. The vehicle was indeed authorised to be on the land legally as is backed up by the word document included, which is an e-mail from the General Manager of xxxxx, of whose members the car park is for the use of. Parking Eye Ltd. Were sent a copy of this e-mail but have obviously ignored it.. Indeed, the driver has informed me that they had to park just to be able to find a sign to read and by the time that the ridiculously small print had been read the member had concluded their short business and left, the member had not been informed by staff of the new parking system. In fact there is not even a facility to enter a vehicle registration inside the reception area as you have to actually enter the gym through a card activated turnstile.
2. The operator makes much of Beavis case. They are well aware that the circumstances of the Beavis case were entirely different, essentially that case was the abuse of a free time limited public car park where signage could be used to create a contract.

In this case, we have an authorised user using the car park appropriately, there has been no loss to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that a £100 (or £60 if paid promptly) fine is a conscionable amount to be charged whilst an authorised member visits the business to speak to a manager for 10 minutes.
Therefore, in this case GPEOL should still apply and any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair.
3. The minimum grace period was not allowed by the operator:
The vehicle entered the car park at 09:17 and left at 09:29
British Parking Association Code of Practice 13.1 – 13.4 states:
13 Grace periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without
having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still
allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end
of the parking period should be a minimum of 10 minutes.
4. Insufficient signage.
Parking Eye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park but their own images of the vehicle included on the PCN disprove this because no signage is visable in said images. The keeper made a special visit to the car park to ascertain the positioning and quality of the sign. They are positioned further inside the entrance and would only be visable to the driver if they happened to be driving a convertible with the roof down and quite clearly this is not the case in the images. Unreadable signage breaches Appendix B of the 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. Also because of this visit it is noted that the sign is a forbidding one, so no contract can be made with the driver.
5. No evidence of Landowner Authority
The operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 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

Also Parking Eye have provided no evidence that the ANPR system is reliable. The 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 Parking Eye 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.
Parking Eye has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.
Failure of Parking Eye to follow the BPA code of practice, particularly in contravention of clause 22.8 of the British Parking Associations code of practice too which Parking Eye must abide states that members of the BPA must “acknowledge or reply to the challenge within 14 days of receiving it. The initial appeal was lodged online on Parking Eye’s site on the 16/09/2016, yet Parking Eye did not respond until 10/10/16, when they rejected the initial appeal.

Coupon-mad

You haven't added the longer versions of #4 and #5 (as shown in the templates already mentioned). More can be made of 'signage' and 'landowner authority' which might just catch them out. In our experience, really long PE POPLA appeals can see them give up and move on to an easier one, not wasting the man-hours on it. Yours is very short and it doesn't need to be, as you will be attaching it as a PDF on the POPLA webpage so you are unrestricted on wording. As this is PE who will sue if you lose I would have a very strong crack at this now.

I would add these facts somewhere to help POPLA picture the scene, perhaps added to point #2:



A passenger was simply dropped off briefly to cancel a membership. Not being a driver he knew nothing off the fact that you have to supply your car details when entering the gym because there were no signs inside the Gym alerting people to this requirement. I contend that the driver merely circled the car park, picked up the passenger and drove out, at no point parking or leaving the vehicle in a bay. The driver had no cause to read nor accept any parking contract because the vehicle did not park and was never adjacent to a sign with any visible terms.

There may be signs at the boundaries but not all areas are well-signed as a car drives through the middle of the site, so unlike the findings regarding the beavis case car park, the driver here was certainly not 'bound to' have seen the terms nor could be considered to have 'agreed' to a parking contract like Mr Beavis did. An unfair 'out of all proportion' charge for non-parking activity of merely dropping off, picking up and leaving within minutes is precisely the sort of charge that the Beavis case Judges made clear would fail the penalty rule which was 'plainly engaged'.

In simple terms, there can be no contractual relationship without an offer being read and accepted and in this case there was never any agreement on a parking charge as the driver did not park. No 'promise' was made, no offer nor charge was seen, no acceptance of terms occurred and no parking activity took place.

In the absence of any promise to comply with any primary obligation and due to there being no single 'period of parking', keeper liability under the POFA 2012 is not possible. This is because Schedule 4 is dependent upon the existence of a 'relevant contract' or 'relevant obligation' and neither existed for a driver circling the car park. In addition, 'keeper liability' under Schedule 4 fails where there was a lack of 'adequate notice' of a charge and where a PCN does not relate to a 'single period of parking'. Here there was no period of parking, merely a wrong assumption made that the car had parked (with no evidence at all) contrary to the Grace Periods set out in the BPA CoP.

In the Beavis case it was held at 190:

''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.''

And it was held that: ''the contractual relationship [was] created by Mr Beavis’s acceptance of the terms of the notice’’ and ''But 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.’’

AJRawlins

I appreciate all the time and trouble you have gone to in my quest for help coupon-mad.

I have added more about the member and landowner, but am wary to about the signage because even though they are not plain to see on entry, on seeing them the charge is in large lettering. Also it is a small car park.

Thanks.

Coupon-mad

OK I can see the signage issue, sometimes PE signs are clear(ish) so maybe there is less to say there. although there are often central areas with no signs very near, even in a small car park.

As the car was only there 12 minutes I would put Grace Periods first, personally.

And I really would have ALL of this in there because POPLA tend to find in PE's favour in many cases so you need the Assessor to 'get it'. If you lose, PE will sue:

A passenger was simply dropped off briefly to cancel a membership. Not being a driver he knew nothing off the fact that you have to supply your car details when entering the gym because there were no signs inside the Gym alerting people to this requirement. I contend that the driver merely circled the car park, picked up the passenger and drove out, at no point parking or leaving the vehicle in a bay. The driver had no cause to read nor accept any parking contract because the vehicle did not park and was never adjacent to a sign with any visible terms.

There may be signs at the boundaries but not all areas are well-signed as a car drives through the middle of the site, so unlike the findings regarding the Beavis case car park, the driver here was certainly not 'bound to' have seen the terms nor could be considered to have 'agreed' to a parking contract like Mr Beavis did. An unfair 'out of all proportion' charge for non-parking activity of merely dropping off, picking up and leaving within minutes is precisely the sort of charge that the Beavis case Judges made clear would fail the penalty rule which was 'plainly engaged'.

In simple terms, there can be no contractual relationship without an offer being read and accepted and in this case there was never any agreement on a parking charge as the driver did not park. No 'promise' was made, no offer nor charge was seen, no acceptance of terms occurred and no parking activity took place.

In the absence of any promise to comply with any primary obligation and due to there being no single 'period of parking', keeper liability under the POFA 2012 is not possible. This is because Schedule 4 is dependent upon the existence of a 'relevant contract' or 'relevant obligation' and neither existed for a driver circling the car park. In addition, 'keeper liability' under Schedule 4 fails where there was a lack of 'adequate notice' of a charge and where a PCN does not relate to a 'single period of parking'. Here there was no period of parking, merely a wrong assumption made that the car had parked (with no evidence at all) contrary to the Grace Periods set out in the BPA CoP.

In the Beavis case it was held at 190:

''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.''

And it was held that: ''the contractual relationship [was] created by Mr Beavis’s acceptance of the terms of the notice’’ and ''But 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.’’

AJRawlins

Ok thank you.

AJRawlins

Victory..Received an e-mail from POPLA my appeal has been upheld because PE do not wish to contest it, also got one from PE cancelling the charge,.
So thanks for all the help especially a to coupon-mad who helped a lot

Coupon-mad

Great stuff!

Would you mind posting and linking to this thread, in 'POPLA Decisions' for posterity?

And I'd like to link this thread to the NEWBIES thread to show people an example of a winning 12 minutes/not parked ParkingEye 'grace periods' POPLA win (PE throwing in the towel is a win!).

But could you show us by copying & pasting it, the final version POPLA appeal you went with? You and I had some discussion about adding stuff but I'd like to be able to show other newbies what your finished appeal looked like please.