ParkingEye at Portishead Marina Quays

PGHarper

This is my rebuttal so far. If anyone has time to respond tonight, that would be great. If not it goes in tomorrow.

I want to add further information to my appeal, based on the information pack that I received from Parking Eye Ltd. I would also like to point out that it was not made clear to me that I could make a response, either by ParkingEye Ltd or POPLA. I have been told by an outside source that this response is important and if I don’t respond it might have a negative outcome on my appeal.

My appeal was based on the following eight points:

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.

My rebuttals to ParkingEye Ltd.’s response are as follows:

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

In my appeal I stated that:

“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 in their response, section G – other evidence, have only given their contract between themselves and Quay Marinas Ltd. They still have not proven that the land is outside of the Bristol City Docks byelaws (2009). As such, I reiterate:

“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. “


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 ParkingEye Ltd.’s response, they have proved that I am the registered keeper of the vehicle involved in this event, Section D – Registered Keeper Details.

However they still have not proved that I as the registered keeper was the driver of the vehicle. Henry Greenslade, previous POPLA Lead Adjudicator, in 2015 said:

“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.”

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.

In my appeal I questioned the operator’s authority to pursue charges at this site. I asked:

“ 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.”

ParkingEye Ltd has included a copy of their contract in their response, section G – other evidence. It is heavily redacted! It is between ParkingEye Ltd and Quay Marinas Ltd. However the document is signed and dated on 20/06/2014 (‘effective date’) at the top of the agreement. At the bottom of the agreement the initial term is for:

“A period commencing on the Effective Date and expiring after 24 months.”

This means the contract they have provided me is, and was on 2nd August 2016, out of date, and therefore not valid.

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

In my appeal I alluded to the fact that the entrance signage was insufficient and that it did not meet the requirements of the BPA Code of Practice section 8 and appendix B.

ParkingEye Ltd.’s response has provided us with the Images, photographs and plans in section F. Some of these pictures are from as far back as May 2013 and May 2014. They have not actually included a picture of the entrance to the car park. Their version dated 21/05/14 15:10 titled ‘13/06/2014 – Entrance P Sign In Situ 600x800’ shows the signs high up on poles and off to the side of the road.
I included a picture, 20161008_095206.jpg, taken from a driver’s perspective. This shows the entrance to the car park, the ridge across the road, with the back of an exit sign! One of the signs by the hedge can just be seen to the right of the picture. This is a ‘Welcome to Portishead Quays Marina’ sign. It does say ‘Quay Marinas politely remind you that this is a payment car park which is managed by ParkingEye Ltd.’

It does not clearly give a driver the terms and conditions for using the car park, or say they have just driven past the entrance that is being controlled by ANPR cameras and that the driver is already being charged.

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.

In my appeal I made reference to the British Parking Association Ltd (“BPA”) Code of Practice that 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.”

In ParkingEye Ltd’s case summary, it states:

“ParkingEye operates a grace period on all sites, which gives the motorist time to enter a car park, park, and establish whether or not they wish to be bound by the terms and conditions of parking. These grace periods are sufficient for this purpose and are fully compliant with the BPA code of practice.”

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. Inadequacy of ANPR camera.

In my appeal I questioned the reliability of the ANPR equipment being used. I asked 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.”

In their response they have said that:

“21.3 – All ANPR equipment is monitored and kept in good working order. A central team of trained Technical Support Engineers proactively monitor the performance of all systems to ensure the accuracy of data collected.”

However they have not produced any records of maintenance that would prove to me that the system in place is just as likely to produce a faulty outcome.

In Section B – Copy of any Terms/Conditions, ParkingEye ltd state:

“The British Parking Association Code of Practice contains guidelines for the use of ANPR cameras at Section 21. We comply fully with this; 21.1 – ParkingEye uses ANPR cameras in a reasonable, consistent and transparent manner. All signage contains the universally recognised symbol for the use of these cameras, and it is made clear that ANPR technology is in use on site.”

The signage may be universally recognised by the industry, but this does not mean that everyone understands the significance placed on this small image at the bottom of their signs. All it says to most drivers is that they are using cameras which are capable of recording number plates. It does not say that this information is recording and charging the driver for time spent in the car park, whether they have parked the vehicle or not.

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.”

ParkingEye Ltd, in my mind, has still failed to meet the minimum standards set out in section 21.1 of the BPA Code of Practice. Therefore any supposed contract would be invalid.


7. The car park signage failed to 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.

Northlakes

Can you in point 1 give the full title of the byelaws i.e. Bristol City Dock Byelaws 2009.
It then gives the assessor the nod straightaway that this is a relevant land case.

PGHarper

How long do POPLA normally take on their decisions?

I sent in my rebuttal on 14/11/16 and haven't heard anything yet.

Starting to get worried that I have missed something!

Umkomaas

4-6 weeks unless the PPC withdraws then you're told immediately.

Have you checked their website for your case?

Elysander

As the op's appeal referred to byelaws, could this be the reason why no response has been received from POPLA? According to their website, no decision has been made on whether they have authority to look at byelaw cases.

Umkomaas

Elysander wrote: »

As the op's appeal referred to byelaws, could this be the reason why no response has been received from POPLA? According to their website, no decision has been made on whether they have authority to look at byelaw cases.

Possibly, but you'd think POPLA would just annotate the electronic link to the case, or even send a quick email. People are on tentahooks enough with all this stuff than to be kept further in the dark!

PGHarper

Finally got a response today....

....and I lost!

The assessor, Alexandra Wilcock, dismissed all the points. She also seemed to do it with some flair and made comment to previous cases as if they answered all my points, and why was I arguing!!!!

Coupon-mad

No worries, we've seen POPLA muck up byelaws decisions before...

So, having seen your post in POPLA decisions, how exactly did PE evidence this:

The appellant states there is no keeper liability as the site is covered by Byelaws and is not relevant land. I note the appellant’s comments however, I can see from the operator’s case file that the PCN and land in question is relevant land.

POPLA case: unsuccessful
Date of Offence: 02/08/2016
Portishead Marina Quays
Date of Decision: 30/01/2017
Assessor Name: A W
Assessor summary of operator case: The driver failed to purchase the appropriate parking time.

Assessor supporting rational for decision:
I note we have placed this appeal on hold because it appeared as though the circumstances of the appeal related to the issue of Byelaws. After further consideration, it is clear that the operator issued a Parking Charge Notice (PCN) to you because you failed to purchase a valid pay and display ticket and there is no reference to it replying on Byelaws when doing so.

As such, my decision will look to establish if the parking contract was formed and if it was, if you failed to adhere to the terms and conditions as alleged by the parking operator. The terms and conditions of the site state “Parking tariffs apply 24 hours a day, 7 days a week. 15 minutes FREE, 1 additional hour £1.00”.

The operator has issued a £100 Parking Charge Notice (PCN) due to the driver failing to purchase the appropriate parking time. The operator has provided photographic evidence which shows the site is monitored by an Automatic Number Plate Recognition (ANPR) system. From the images provided from the day in question, it shows the appellant’s vehicle entering the car park at 16:31 and exiting at 17:02.

From this I am satisfied that the appellant remained on the site in question for 31 minutes.

The appellant states there is no keeper liability as the site is covered by Byelaws and is not relevant land. I note the appellant’s comments however, I can see from the operator’s case file that the PCN and land in question is relevant land.

The operator has issued the PCN under terms and conditions and makes no reference to Byelaws.

The appellant states the operator has not shown that the individual who it is perusing is the driver of the vehicle. I note the appellant’s comments however, if the operator has not identified who the driver of the vehicle was on the day in question it can use the Protection of Freedoms Act (PoFA) 2012 to transfer liability from the driver to the Registered Keeper.

After reviewing the Notice to Keeper provided by the operator, I am satisfied that the operator has met the requirements of PoFA 2012 therefore successfully transferring liability.

The appellant states the operator does not have any landowner authority to issue PCN. I note the appellant’s comments however; the operator has provided documentation which shows it has landowner authority to operate the site and issue PCN’s.

The appellant states there is inadequate signage on site. The operator has provided photographic evidence of the signage on site to rebut the appellant’s claims. From the evidence provided, I am satisfied that the signage is clear easy to read and understand.

The appellant states the operator did not allow the reasonable grace period required under the British Parking Association (BPA), Code of Practice. I note the appellant’s comments however; the appellant has not provided any reason to why he remained on site for 31 minutes without making an additional payment for the time parked on site. As he has not provided any reasoning to why he could not make an additional payment or to why he could not leave site within the correct time, I am satisfied that the operator does not need to allow a grace period. Furthermore, I do not deem 16 minutes as a reasonable grace period.

The appellant states there is inadequacy of the ANPR cameras. In terms of the technology of the ANPR cameras themselves, the British Parking Association (BPA) audits the ANPR systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate. Independent research has found that the technology is generally accurate. Unless POPLA is presented with sufficient evidence to prove otherwise, we consider the technology was working at the time of the alleged improper parking.

The appellant states the signage on the site does not notify the driver that Parking Eye intend to exercise its rights under the PoFA 2012. I appreciate the appellant’s comments however; the operator does not need to reference PoFA 2012 on the signage on the site. Furthermore, regardless of whether this was displayed on the signage, this would not have affected the drivers parking on the day in question.

The appellant states there is no legitimate interest, as the charge does not demonstrate a genuine pre estimate of loss. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis {blah blah...POPLA have swallowed the suggestion that the Beavis case kills all other arguments...}

Having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable.

While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. I can see from the evidence provided that the appellant remained on site therefore, agreeing to comply with the terms and conditions.

I am satisfied that the signage clearly informs motorists that they must pay the appropriate fee for parking. As the appellant remained on site without paying the appropriate parking fee, he has failed to comply with the terms and conditions. As such, the PCN was issued correctly.

PGHarper

Can I just say thank you to everyone who helped me.

Coupon-mad

You must complain to Mr Gallagher the Lead Adjudicator:

complaints@popla.co.uk

Because your evidence was this and it seems PE did NOT show it was 'relevant land' but the Assessor wrongly assumed it, purely because PE were issuing a 'Parking Charge' under contract law. That does NOT make a site 'relevant land' all of a sudden. The only way PE could have disproved that aspect of your appeal (below)* would have been if they had proved this site was outside the location of the Byelaws. I bet they said nothing like that.



*2. No Keeper Liability - Bristol Bye Laws

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.