Parking eye Swindon. Fleming way, PCN now cancelled!

Coupon-mad

Yes you do, I wrote the above to push the right buttons. Just remove the bit about receipts.

jlemaitre

:beer:

Thank you very much C-m. I shall do as you advise.

DoaM

jlemaitre wrote: »

I want to just pay the £60 and be done with it, however my partner is staunchly against this.

Thankfully you came here ... we're with your partner on this. If you paid it you'd only be helping to fund their next scam victim, who might be a pensioner living hand-to-mouth.

jlemaitre

As expected the appeal with the scammers known as Parking Eye was declined.

I doubt they bothered to read the appeal. The reply they sent, seemed a copy and paste job/automated email.

Any tips on what should be a avoided for the POPLA appeal would be rather grateful.

copy and paste of the appeal from the PDF file, excluding the personal info.


Dear Sir / Madam,
Thank you for your correspondence in relation to the Parking Charge incurred on 17
December 2016 at 14:42, at Fleming Way Retail Park, Wiltshire car park.
We are writing to advise you that your recent appeal has been unsuccessful and that you
have now reached the end of our internal appeals procedure. This site is a maximum stay
car park, as per the terms and conditions as detailed on the signage. Your appeal has
been rejected on the basis that the maximum time allowed was exceeded. However, as a
gesture of goodwill, we have extended the discount period for a further 14 days from the
date of this correspondence. Please be advised:
 There is an independent appeals service (POPLA) which is available to motorists
who have had an appeal rejected by a British Parking Association Approved
Operator. Contact information and further information can be found enclosed.
See also https://www.popla.co.uk
 If you appeal to POPLA and your appeal is unsuccessful you will not be able to
pay the discounted amount in settlement of the Parking Charge, you will be liable
to pay the full amount.
 By law we are also required to inform you that Ombudsman Services
(https://www.ombudsman-services.org/) provides an alternative dispute resolution
service that would be competent to deal with your appeal. However, we have not
chosen to participate in their alternative dispute resolution service. As such
should you wish to appeal then you must do so to POPLA, as explained above.
A payment can be made by telephoning our offices on 0330 555 4444 or by visiting
https://www.parkingeye.co.uk or by posting a cheque or postal order to ParkingEye, PO Box
565, Chorley, PR6 6HT.
Yours faithfully
ParkingEye Team

Coupon-mad

jlemaitre wrote: »

Thank you for the reply.

It happened at Fleming Way retail park in Swindon (there is a The Range there plus Halfords).

What happened when you Googled the place, found this:

http://www.wilkinsonwilliams.co.uk/cog-media/scheme/4/4073/CR_RW_4073_Fleming_Way_Retail_Park_Swindon_brochure_1.pdf

http://www.londonmetric.com/properties#/mapview/properties/properties-items/joint-ventures/mipp/swindon

https://realla.co/to-rent/details/3343e105f0734a50934d2817801b717a

and complained to Simon Meacock whose contact details are right there in the first leaflet link?

Or D Marsden at Wilkinson Williams as in the second link?

And complained to the Store Managers on site to get it cancelled, as the NEWBIES thread tells you is the first step alongside appealing?

jlemaitre

Thanks for the reply. We didn't contact the site owners as we have no proof of purchase so didn't think it was a viable option.

jlemaitre

I have put together a POPLA appeal and would be grateful for any advice on improving it.

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question.

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

1) NTK failed to reach me in the accepted period
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 evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4) No grace period has been taken into account (Clause 13 of the BPA Code of Practice)


1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the date I received it.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. ParkingEye have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

’’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


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) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period…is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent to myself as Registered Keeper arrived some 2 and a half weeks after the alleged event. The NTK issued by ParkingEye states the ‘date of contravention’ as 17th of December 2016, and ‘date of notice’ as 3rd January 2017, (17 days later), hence the NTK can not be considered to be deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b).


This means that ParkingEye have failed to act in time for keeper liability to apply.

So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was - and that person was not me.

2) The operator has not shown that the individual who it is pursuing is in fact 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, not by POPLA, nor the operator, nor even in court. 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 charge cannot be enforced against a keeper without a POFA-compliant NTK.


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 – they will fail to show I can be liable because the driver was not me.

The vital matter of full compliance with the POFA 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.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:


''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''


3) ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

As this operator does not have proprietary interest in the land then I require that they produce an unredacted, contemporaneous copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name.


Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.


Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).


Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance: ‘7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.’





7.3 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.

3) I also assert that a purported (unproven) 16 minutes all told, falls well within the allowable time both before and after parking, taking into account this particular car park and the busy pre-Christmas period which meant cars were queuing on arrival and at the end after loading their purchases, before being able to exit onto the road. I remind you that this event is more than covered by the 'at least 10 minutes' observation period on arrival plus the defined separate and extra added 'grace period' time (of five to ten minutes or more, which depends upon the facts) that must THEN be allowed to leave, according to Kelvin Reynolds, the BPA's Director of Policy & Public Affairs:

http://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

The BPA CoP says:
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
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.

The landowner contract with ParkingEye requires them to conform with the BPA CoP.

Coupon-mad

jlemaitre wrote: »

Thanks for the reply. We didn't contact the site owners as we have no proof of purchase so didn't think it was a viable option.

It still is...we see lots of these cancelled when people confirm they were browsing in shops with a view to a large purchase (furniture) or future purchase (child's birthday present, etc.) even if the actual purchases bought that day were just cash items.

It can work just to complain about the harassment and say it has put your family off ever returning.

I would try the complaint first, in January, if your POPLA code is going to be valid into February.

jlemaitre

SUCCESS!!

As per Coupon-mad's suggestion we emailed Savills who manage the retail park and explained we were genuine customers and they replied saying they would instruct PE to cancel the ticket. We have just received a letter from PE confirming cancellation of the ticket.

Anyone who is reading this thread and is in a similar position please do the same and contact as many people as you can at the retail park to get your ticket cancelled!

Many many thanks to everyone on here for their help, especially Coupon-mad. You are a star.

Coupon-mad

Great news!