Parking Eye PCN

sharry68

Firstly let me apologise as I know there are many similar threads to this on here and in fact that much information on the internet that I'm overwhelmed by it all. In a nutshell I have appealed a PCN from parking eye that was posted out to me 95 days after the alleged offence occurred. In my appeal letter I have used this fact, which I believe is a notice to keeper breach and also the excessive charges augment, I have also declined to tell them who the driver of the vehicle is and used the template from this website so thought I'd win but no my appeal has been rejected but theres no mention of why they took 95 days to serve the parking charge. Do you think its worth going to POPLA ?

pappa_golf

is the car leased/hired or is the V5 in your name at your present address ?


have they given you a POPLa code , have you checked the expiry date on it?

sharry68

Yes a POPLa code has been supplied, letter from parking eye with popla details is dated the 7th November but interestingly I didn't receive it until 11th November thus cutting my 14 day response time down ! Car is registered to me. I'm sure that I've read they have to serve you with the initial parking 'fine' by post within 27-56 days, how can anyone be expected to challenge them 95 days later when you've disposed of any possible evidence ! I'd go to POPLA without hesitation if it didn't mean I've have to pay the fine in full if I lost

Umkomaas

You've got 28 days to appeal to POPLA. If you get your POPLA appeal right (with help from here) you'll be paying nothing.

Read NEWBIES FAQ stick post #3 and look at the last 4-5 pages of the POPLA Decisions sticky.

Post your draft here once you've digested the information on how to go about this.

sharry68

Thank you Umkomaas for you help

Hopefully you can cast an eye on the draft below. Not sure if its best to go with just one solid argument i.e not receiving the PCN for 92 days or to include all the points mentioned, also not sure how to end the letter ?

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 14th October 2016 for the alleged breach of parking conditions at St Peters Retail Park, Mansfield on the 17th July 2016.

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

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


1. 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 received on 20th October 2016 was issued and sent to myself as Registered Keeper on 14th October 2016. This is 92 days after the event which took place on 17/07/2016. 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.


2. 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.


3. 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.

Coupon-mad

I will take a look. So will others, so wait for comments, no rush. Early thoughts from me:

I would add the template point about signs to the end (yes the long one!) unless your signs look like the yellow Beavis sign, in which case make it a bit vaguer.

The Parking Charge Notice received on 20th October 2016 was issued and sent to myself as Registered Keeper on 14/09/2016.

Don't you mean 14/10/16?

And please remove your VRN, PCN number and the POPLA code from this open forum (you never know who is reading). Urgent edit needed!

You WILL win this one, BTW. That non-POFA PCN is fatal to their case and I expect PE will throw in the towel.

sharry68

thank you again, edits made ....silly me over the date ! in fairness to parking eye there are a few large signs on the car park so I'll compare them to the Beavis sign

Coupon-mad

Here's the Beavis sign:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s1600/Parking%2Bsign_001.jpg

We would always say have an 'unclear signs' point because the signs are so high and unremarkable, on poles, which part of the template does cover. Talking about how hard they are to read from a distance - but if the signs at the location are as brief as the above/look like that, then you should cut back on the section of the template that says 'look, the Beavis sign was very different'!

sharry68

Ours do contain a lot of very small writing at the bottom of the sign which is unreadable at a distance but they do clearly state only 45 minutes free parking and then you have to pay set amounts to buy time after the 45 minutes free e.g another 90p will pay for an extra hours parking, I'd say the signs are more confusing than unclear. I'll have to see if I can go and take a photograph of one to post on here

Fruitcake

sharry68 wrote: »

Ours do contain a lot of very small writing at the bottom of the sign which is unreadable at a distance but they do clearly state only 45 minutes free parking and then you have to pay set amounts to buy time after the 45 minutes free e.g another 90p will pay for an extra hours parking, I'd say the signs are more confusing than unclear. I'll have to see if I can go and take a photograph of one to post on here

Use the term, inadequate signage, which covers legibility and understandability, if you see what I mean. If the meaning of the words is unclear or what tariff should be paid for what time is difficult to understand, then the signage is unclear, or just plain inadequate.

In any case, it is up to parking lie to prove the signs are OK if you say they aren't.

Size of writing (font size) position of signs, size of the charge for breaching terms is smaller than the tariff wording, or having to know how long you are going to stay so you can work out how much to pay beforehand is difficult to calculate all count as unclear signage.

You should also have ANPR accuracy and Grace periods if they are relevant, and if ANPR is used, the signs must state what the data will be used for.

sharry68

In their original PCN letter they make a point of saying the signage is clearly displayed stating terms and conditions and costs and that the land is private and the parker will incur charges if they over stay so I'm guessing they are wise to the signage challenges !!