ParkingEye at Portishead Marina Quays

pappa_golf

so in the letter that included your POPLa code they mentioned


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


please can you place on screen the appeal that you made to PE ,

PGHarper

I used the standard one from the FAQ section:

Template appeal for BPA members - copy this wording into the online appeal box or into an email:

Date


Dear Sirs

Re: PCN No. ....................

I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers before they park.

Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. I believe the driver may well be eligible for cancellation and you have omitted clear information about the process for complaints including a geographical address of the landowner.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,

pappa_golf

post #3 asked


Was the PCN sent within 14 days and does it have wording about the POFA 2012 and keeper liability after 29 days??


cannot see an answer to that question

Coupon-mad

I would lose the ANPR point (never wins at POPLA and says nothing much relevant, quotes a very old Fox-Jones case we never saw the decision for!). Replace it with the template POPLA point example from POPLA Decisions (penultimate page) about the individual being pursued not being evidenced as the person liable (the appellant has not been shown to be either the owner nor the driver, only the keeper).

PGHarper

I've now scanned an editable version of their FAQs that came with the appeal rejection. I can upload the paragraphs about Beavis if you want to see them.

PGHarper

PGHarper wrote: »

Date of event 2/8/16
Date issued 6/8/16
Date received 12/8/16
So I don't think I can fight that.

POFA 2012 and keeper liability are both included

With regards to grace period, no they didn't give that allowance. I have just read TLW_18's post and need to write that into my appeal.

Yes it came on day 10 and had paragraphs about POFA 2012 and keeper liability

PGHarper

This is from the first PCN letter I received on day 10.

You are notified under paragraph 9(2)(b) of schedule 4 of the Protection of Freedoms Act 2012 that the driver of the motor vehicle is required to pay this parking charge in full. As we do not know the driver's name or current postal address, if you were not the driver at the time, you should tell us the name and current postal address of the driver and pass this notice to them.
You are warned that if. after 29 days from the date given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and current address of the driver. we have the right to recover any unpaid part of the parking charge from you. This warning is given to you under Paragraph 9(2)(f) of schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under schedule 4 of that Act.

Coupon-mad

So they alleging keeper liability re a site that is not 'relevant land'. Something to report them to the DVLA for after you win this POPLA appeal on 'not relevant land'.

So do make sure you add in the usual template appeal point that the individual being pursued has not been shown to be either the owner nor the driver, only the keeper. (POPLA Decisions post #2342, copy it verbatim).

I would suggest replacing point #7 in your draft with it, as the keeper liability re the NTK 'period of parking' argument is weak/will not impress POPLA (and is not needed as it's not relevant land so the POFA does not apply).

PGHarper

Thank you for your help everyone. Here is my letter as it stands. Sorry if I have missed anything, please remind me if you think it strengthens my case.

Dear POPLA Assessor,

The vehicle above was recorded entering the Portishead Quays Marina on the 02 AUG 2016 by APNR.
I am 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. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
3. No standing or authority to pursue charges nor form contracts with drivers
4. Inadequate signage/ No contract between driver and the creditor
5. The Operator did not allow the reasonable grace period required under the BPA Code of Practice.
6. Inadequacy of ANPR camera
7. The car park signage failed notify the driver that ParkingEye intended to exercise its rights under 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 https://www.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. 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.

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, 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.

4. 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.

5. 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."

6. 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.


7. The car park signage failed to 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.

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.

Coupon-mad

Looks great except for typo - APNR should be ANPR!