ParkingEye at Portishead Marina Quays

PGHarper

Pappa golf

I take it from your edit, that you think I should lead with that arguement! If I take out no GPEOL and replace later with a newer version, will that be better?

pappa_golf

I missed the bit where you said you paid to park , or the bit where you had a permit


your beef is that the land comes under bylaws and PE have no rights to use POFa , also they have failed to meet the BPA code of practice on grace periods


"3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time in the car park,


at the moment you only have a ticket , you have not got evidence from PE , so why fight what might not be there?

fight the FACTS

Edna_Basher

Grace periods will be an important part of your submission to POPLA: here’s some suggested wording:

"The Operator did not allow the reasonable grace period required under the BPA Code of Practice.

With regard to grace periods, the British Parking Association Ltd (“BPA”) Code of Practice states the following:

Paragraph 13.2: you should allow the driver a reasonable “grace period” in which to decide if they are going to stay or go.

Paragraph 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.

Although Paragraph 13.2 does not specify what constitutes a “reasonable grace period” for a motorist to decide whether to stay or go, this grace period begins when the vehicle passes the ANPR camera at the car park entrance and must cover:

a) the time to drive into the car park and locate a parking space
b) the time to manoeuvre the vehicle into the parking space (once a space has been located)
c) the time for a driver to locate and walk to the nearest car park sign to the parking space
d) the time taken to read and understand all of the conditions contained on the car park sign; this includes having to read all of the “small print” on the sign.

The BPA Code of Practice considers it reasonable to apply a grace period of a minimum of 10 minutes for a motorist to leave the car park at the end of the parking contract (i.e. for the motorist to get into their vehicle, manoeuvre out of the parking space and drive out of the car park).

Given that more processes are involved in the period before the parking contract is formed (e.g. finding a parking space, locating a car park sign and then reading and understanding the terms on the sign), it is reasonable to conclude that the grace period before the establishment of the parking contact must be more than the minimum of the 10 minutes specified by the BPA Code of Practice as the grace period after the parking contract has ended.

[Insert reference to previous POPLA determinations on Grace Periods including this useful case in which the POPLA assessor indicated that at least 11 minutes' grace period was reasonable before the beginning of the "parking contract": [/COLOR][url]http://forums.moneysavingexpert.com/showpost.php?p=70455570&postcount=2099[/url] [COLOR="red"]]

Thus the overall reasonable grace period required under the BPA Code of Practice must be more than 20 minutes.

The Operator’s terms and conditions at this car park allow for 15 minutes’ free parking yet the PCN records a period of just 31 minutes between my vehicle entering and leaving the car park. Given that the additional period of 16 minutes is well within the overall minimum reasonable grace period required by the BPA Code of Practice, POPLA may reasonably determine this PCN as being invalid."


PG - with regard to the relevant land question, I'm not convinced that parking at Portishead Quays is actually covered under the Bristol City Docks Byelaws; any reference to parking seems to be limited only to the "Bristol City Dock Estate" as opposed to the "Portishead Pier Estate". However, there's no harm chucking it in to the appeal - the onus is on ParkingEye to rebut the point about non-relevant land (which their template evidence pack will not do).

pappa_golf

edna this is the one where there contract was out of date (earlier this year)

Edna_Basher

Good point PG.

No evidence of landholder authority should be high on the list of appeal points - especially if the same contract covers the private residential parking zone (as per tlw_18's case from earlier this year) and this P & D car park as in PGHarper's case.

PGHarper

Oh my head hurts!!!

Thanks for the help everyone.

PGHarper

PG,

I cant see a reference for that case. Am I allowed to say 'PE v her surname 2016' ?

PGHarper

Here are my tweaks

Dear POPLA Assessor,

The vehicle above was recorded entering the Portishead Quays Marina on the 02 AUG 2016 by APNR.
I'm the registered keeper of the vehicle and I am appealing against the parking charge above. I believe I am not liable for the parking charge on the grounds stated below. I would graciously ask that all points are taken into consideration when making your judgement.


1. No Keeper Liability - Bristol Bye Laws
2. No standing or authority to pursue charges nor form contracts with drivers
3. Inadequate signage/ No contract between driver and the creditor
4. The Operator did not allow the reasonable grace period required under the BPA Code of Practice.
5. Inadequacy of ANPR camera
6. The car park signage failed notify the driver that ParkingEye intended to exercise its rights under POFA
7. ParkingEye Ltd.’s Notice to Keeper failed to meet the strict requirements of POFA
8. No Legitimate Interest - Beavis case not relevant to a tariff car park.


1. No Keeper Liability - Bristol Bye Laws, not relevant land

Portishead Quays Marina fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled you to pursue this matter with myself (the registered keeper). ParkingEye Ltd have 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).

Indeed, and as ParkingEye Ltd are already fully aware, no keeper liability can apply at all, due to the BRISTOL CITY DOCKS BYE-LAWS (2009)
which can be found at .bristol.gov.uk/documents/20182/33656/city-docks-byelaws.pdf/4848ef7d-139d-4ed5-9387-f3173a72e604 (the byelaws), taking precedence and rendering this land outwith POFA and outwith 'registered keeper liability'. I refer you to Part 1, section 3 which states that Portishead Pier Estate is an area to which the byelaws apply.

POFA 2012 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 Portishead Quays Marina and the surrounding port is covered by bye-laws (statutory control) it clearly falls under 3(c) and is therefore exempt from POFA 2012.

For ParkingEye Ltd 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 ParkingEye Ltd contend otherwise then I expect them forthwith to provide me with contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply around Portishead Quays Marina. If ParkingEye Ltd fails to supply this information I will ask Bristol City Council and Trading Standards to investigate your conduct and prosecute you.

The byelaws make it very clear (at Part V, paragraph 68) that the penalties for parking on the land designated is solely in the gift of the Criminal Courts and as such ParkingEye Ltd have no standing whatsoever to enforce civil parking charges or parking systems. Additionally, the byelaws also make utterly transparent that the Bristol City Docks bye laws to which they apply includes the Portishead Quays Marina area.

2. 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, ParkingEye Ltd 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 or authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put ParkingEye Ltd to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between ParkingEye Ltd and the landowner, not just 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 Ltd.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

3. Inadequate signage/No contract between driver and the creditor

The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye Ltd and the driver. I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B.
Following the receipt of the charge, I as the registered owner have personally visited the site in question, and the signage at this car park especially at the entrance is inadequate. The signage advertises/announces the management company’s logo/banner, the facilities are listed including car parking. The signage however, is at a point where traffic is meeting and the drivers’ attention would be on vehicles approaching. At the physical entrance to the car park, there is no signage stating the contract or the method of charging customers. It is therefore possible for drivers to enter the car park without realising that it is a privately managed car park. (Please see attached photographic images for signage at the entrance of the car park)

Under Section B 18.2 Entrance signs of the BPA Code of Practice it states:

‘Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B.’

It therefore follows that due to inadequate & insufficient signage that the contract between the driver & the creditor has not been established.

4. The Operator did not allow the reasonable grace period required under the BPA Code of Practice.

With regard to grace periods, the British Parking Association Ltd (“BPA”) Code of Practice states the following:

Paragraph 13.2: you should allow the driver a reasonable “grace period” in which to decide if they are going to stay or go.

Paragraph 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.

Although Paragraph 13.2 does not specify what constitutes a “reasonable grace period” for a motorist to decide whether to stay or go, this grace period begins when the vehicle passes the ANPR camera at the car park entrance and must cover:

a) the time to drive into the car park and locate a parking space
b) the time to manoeuvre the vehicle into the parking space (once a space has been located)
c) the time for a driver to locate and walk to the nearest car park sign to the parking space
d) the time taken to read and understand all of the conditions contained on the car park sign; this includes having to read all of the “small print” on the sign.

The BPA Code of Practice considers it reasonable to apply a grace period of a minimum of 10 minutes for a motorist to leave the car park at the end of the parking contract (i.e. for the motorist to get into their vehicle, manoeuvre out of the parking space and drive out of the car park).

Given that more processes are involved in the period before the parking contract is formed (e.g. finding a parking space, locating a car park sign and then reading and understanding the terms on the sign), it is reasonable to conclude that the grace period before the establishment of the parking contact must be more than the minimum of the 10 minutes specified by the BPA Code of Practice as the grace period after the parking contract has ended.

Thus the overall reasonable grace period required under the BPA Code of Practice must be more than 20 minutes.

The Operator’s terms and conditions at this car park allow for 15 minutes’ free parking yet the PCN records a period of just 31 minutes between my vehicle entering and leaving the car park. Given that the additional period of 16 minutes is well within the overall minimum reasonable grace period required by the BPA Code of Practice, POPLA may reasonably determine this PCN as being invalid."

5. Inadequate accuracy of ANPR camera

ParkingEye Ltd is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require ParkingEye Ltd to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye Ltd was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

Furthermore, as described in the BPA Code of Practice under paragraph 21.1:

“You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.”

Additionally, expanding from point 1 above, Section 18.3 of the BPA Code of Practice states that any “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

Considering the observations made in point 2 (inadequate and non-compliant signage) above, I argue that Parking Eye has failed to meet the minimum standards set out in sections 21.1 and 18.3 of the BPA Code of Practice. While the available sign advises that the “car park (is) monitored by ANPR systems”, it does not inform the motorist what it is using “the data captured by ANPR cameras” for, as required under Section 21.1 of the BPA Code of Practice nor is it therefore “easy to understand”, as required under Section 18.3 of the BPA Code of Practice.

I would also point out that on the pictures provided of the vehicle on the PCN that it is impossible to tell where the first picture was taken as it is pitch black in the photo on the PCN. The only legible thing you can see is the number plate. So this casts doubt on the actual time spent within the car park, if at all, because there are NO pictures showing the car actually in THIS car park boundary/having passed any signage at all. If photos are taken just outside the car park then it is perfectly feasible that the driver might have stopped there to try to read any entrance signs or look for a barrier or arrows on where to proceed. If so then the cameras are set in an unfair position and will be starting the clock at a time when the car should not be timed at all.


6. The car park signage failed notify the driver that ParkingEye Ltd intended to exercise its rights under POFA

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including;

Paragraph 68 (1): a trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

Paragraph 68 (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.

Paragraph 69 (1): if a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

Also, Paragraph 21.1 of the British Parking Association Ltd Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. This paragraph also instructs operators that signs at the car park must tell drivers that they are using this technology and what they will use the data captured by ANPR cameras for.

I have good reason to believe that the car park signs did not clearly advise the driver that ParkingEye Ltd intended to use the data captured by its ANPR cameras as a means to pursue the vehicle’s keeper under POFA for parking charges in the event that they remained unpaid by the driver.

The establishment of keeper liability under POFA is not automatic; it is conditional upon the operator a) choosing to exercise its right to use the provisions of POFA and b) then fully complying with the strict requirements of POFA.

In the absence of the car park signs giving a clear warning that ParkingEye Ltd intended to use POFA to claim keeper liability, the driver (in accordance with their rights under Paragraph 69 of the Consumer Protection Act 2015) was reasonably entitled to conclude that ParkingEye Ltd did not intend to use POFA to pursue keeper liability.

7. ParkingEye Ltd’s Notice to Keeper failed to meet the strict requirements of POFA

ParkingEye Ltd failed to deliver a Notice to Keeper that fully met all of POFA’s strict requirements, particularly Paragraph 9(2)(a) of Schedule 4. Contrary to the requirements of Paragraph 9(2)(a), the Notice to Keeper did not specify the period of parking to which the notice relates. The Notice to Keeper specified the times which ParkingEye Ltd alleged that the vehicle arrived and departed (as recorded by ANPR camera images). These times are clearly not the same as the times between which the vehicle was alleged to have been parked

8. No Legitimate Interest - Beavis case not relevant to a tariff car park.

This case is an unfair penalty and differs from the 'Beavis v Parking Eye' judgment because it is a contractual charge from a pay and display car park; an offer of parking for a set sum was made and a 15 minute free period was chosen. This makes plain that the sum of £100 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors and is consequently unenforceable.

The charge is for an alleged (but denied) breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified that this non-landowning third party can claim a sum in excess of any damages. However, no such GPEOL or justification can apply here.

Unlike in Beavis, it is confidently argued that this charge (£100) is hugely disproportionate to any alleged unpaid tariff. The charge is not a genuine pre-estimate of loss and as this was a paid parking site that can be distinguished from Parking Eye v Beavis. If ParkingEye Ltd believe that no valid payment choice was made their demand should be for any unpaid tariff as that would be their only loss. If ParkingEye Ltd believes their charge is a genuine pre-estimate of their loss it is demanded they produce a detailed and itemised breakdown of how this has been calculated.

In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £60 on days 1 to 14, then £100 thereafter. This is clearly an arbitrary sum invented by the Operator.

However there can be no Beavis case comparison at all because there is no legitimate interest in pursuing a driver for £100 when ParkingEye Ltd know full well that the driver made a valid choice.

This concludes my appeal and I respectfully request that my appeal be allowed.

pappa_golf

have parking eye mentioned bevis in any of their letters?

PGHarper

Yes, quite strongy:

PE v Beavis and Wardley 2014
PE v Beavis 2015 UKSC 67

Do you need any more info?