Parking Eye PCN

Imperial1847

Hi was recently on holiday in Wells, there is a closed down pub where Parking Eye have taken over control of the pub car park and installed pay & display machines, on certain days in the car park there is a small market towards the bottom away from the parking bays, my partner bought some items from the market which were fairly heavy, I drove in adjusted things in the car to make room and left, the car was never left for any time and the engine was kept running. I have since recieved a PCN as I was caught on the ANPR's in the car park for a total of 17mins.

Having had a read through the forums and seeing the Beavis case my heart sank a little as I had used the excessive charge argument to avoid a previous PCN.

What would you advise?

Coupon-mad

Send the usual template appeal in the NEWBIES FAQS thread and come back at POPLA stage.

Imperial1847

It has now got to POPLA appeal stage and heres a draft for approval:

Dear POPLA

POPLA Appeal

POPLA Ref.

---

ParkingEye PNC no.

---

I am writing as the registered keeper of vehicle ---- --- to lodge a formal appeal against the PCN issued by Private Eye to myself as registered keeper on the 25th August 2016 for the alleged breach of parking conditions at The Captains Table car park, Wells-Next-The-Sea on the 29th August 2016.

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

1. The driver did not park.
2. ParkingEye's Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012.
3. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
4. ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.
5. The signs in this car park are not prominent, clear or legible from all areas of the car park.


1. The driver did not park.

The driver on the 29th August 2016, entered the Captains Table car park Wells-Next-The-Sea but as the car park was extremely busy left on a bank holiday weekend left without parking. Unfamiliar with the area and other car parks in Wells the car park was circled a number of times. This combined with the placement of market stalls that were loading away for the day led to traffic congestion. There are no signs outside or within the car park to inform drivers of the time permitted to find a parking bay or of any grace periods.

It has already been decided in the case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014) that circling/waiting is not considered as parking.

In that case the judge ruled that the 31 minutes the defendant spent driving round the crowded car park in Whit week did not classify as 'parking'. The ANPR evidence only showed the time of entry and exit to the car park, and not the true time parked. The signage only required payment for times parked, and therefore there was no contravention of the terms and conditions.

This case appears to be a direct parallel to the PCN alleged breach of parking I have receive from Parking Eye as the registered keeper.

The judge ruled this was not against the terms and conditions of the signage.


2. ParkingEye's Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012.

Under schedule 4, paragraph 4 of the Protection of Freedoms Act 2012, for the creditor (ParkingEye) to have the right to recover any unpaid parking charges from the keeper of the vehicle (myself), certain conditions must be met as stated in schedule 4, paragraphs 5, 6, 11, and 12. It is my belief that ParkingEye have failed to fulfil the conditions of paragraph 6; which states that ParkingEye must have provided myself as the registered keeper with a notice in accordance with paragraph 9. Paragraph 9 states:

The notice must be given by—

(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.


The applicable section here is (b) as the Parking Charge Notice that I have received was delivered by post. Furthermore, paragraph 9(5) states:

The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

The Parking Charge Notice sent to myself as Registered Keeper was issued on 14/09/2016. This is 16 days after the event, 29/08/2016. Therefore it would be impossible for the notice to have been delivered within the 'relevant period' as required under paragraph 9(4)(b). This means that ParkingEye have failed to act within the legislation set out in the Protection of Freedoms Act 2012 and as such can not pursue me, as the registered keeper, for any unpaid parking charges.

Furthermore the Parking Charge Notice from ParkingEye makes no reference to keeper liability, as is required under paragraph 9(2)(f), which states that the notice must:

warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

This is a clear and strict requirement under the relevant legislation that ParkingEye have not complied with and as such can not rely upon to hold me liable as keeper.


3. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

It is not disputed that the driver has not been identified. Even if POPLA (wrongly, because the law doesn't support this assumption against a keeper) believe that they can 'assume that the operator is pursuing the appellant as the driver of the vehicle' in cases where a non-POFA Notice (like this one) was served, there is still the issue of identifying that the individual the operator is pursuing, is the party who is liable.

I am the keeper and I chose to appeal, not the driver and nor can I be held/assumed as if I was that party. No assumptions can be made by POPLA nor parking operators, that 'driver liability' is possible in this situation just because I appealed as registered keeper, as is my right. Henry Greenslade, the previous POPLA Lead Adjudicator stated that it is the keeper’s right not to name the driver, and of course still not be lawfully held liable, under Schedule 4.

“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...has no legal obligation to name the driver.”

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper, 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 registered keeper without a valid NTK.

Furthermore the paramount importance of compliance with POFA 2012 was confirmed by Mr Greenslade in his 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable, without the POFA having been followed. A very late and non-POFA 'postal PCN' is absolutely fatal to a case where the driver's identity remains unknown.

Thus in this situation, there is no 'keeper liability' nor 'driver liability' possible and the PCN must be cancelled.


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 (non compliant) 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.

In addition, Section 7.3 of the CoP 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.


5. The signs in this car park are not prominent, clear or legible from all areas of the car park.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge. which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

In the Beavis case, the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

This case, by comparison, does not demonstrate an example of the 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering. At the entrance the sign is mounted too high making it illegible, not in a driver's eyeline and on the wrong side of the road making it unnoticeable during busy periods. It cannot be assumed that a driver drove past and could read a legible sign.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was 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:



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.

So, for this appeal, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

Coupon-mad

Nice - a whole POPLA job done with templates plus a first appeal point that is relevant too! Perfect example of how to use this forum.

As long as you have that non-POFA version of a late posted PCN (with nothing about the POFA/liability/29 days), you WILL WIN.

ParkingEye will probably bail out.

Imperial1847

Received a letter of cancellation from Parking Eye today, thanks for the assistance folks.

Coupon-mad

Yay - that was as easy as predicted!