Parking Eye Appeal Refused, Should I appeal to POPLA

Redx

I fail to see what the JOPSON case or the other leaseholder private residential parking cases have to do with a MECCA bingo car park ?

Coupon-mad

Owner’s approval: The owner of the car park has approved the parking and have requested Parking Eye to cancel the ticket. The email from the owner is attached with this appeal. The parking for the customers of Mecca Bingo is free but the driver still paid for 3 hours, this is a genuine case where the driver is not trying to abuse the parking space.

I would make that point #1 and amalgamate it with the wording in your #7.



And I would remove this which isn't right for this car park:

his charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.
In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

There can be no legitimate interest in punishing authorised parking, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for permitted unloading/loading by a driver who has legitimate business and rights to do so.

These rights supersede any signs, which are of no consequence except to deter rogue unwanted drivers from leaving their vehicles when they have no business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to load/unload. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).

This question was tested recently in an Appeal case in June 2016 (transcript attached as evidence for POPLA*). Please note this is an Appeal case, decided by a Senior Circuit Judge and as such, its findings on the definition of 'parking as opposed to loading' and the findings on leaseholder/permitted visitor/loading/delivering rights of way superseding parking signs, are persuasive on the lower courts.

Beavis did not deal with any of these matters - nor was it relevant to a 'permit' car park - but the following case and transcript I have provided, is relevant and the Judge even states that Beavis DOES NOT APPLY to this type of car park:

Appeal case at Oxford County Court, 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016:

Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. After an initial appeal to the Independent Parking Committee was rejected, Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitors arguing that the charge was incompatible with the terms of the existing lease which also extended to certain rights for permitted visitors when loading/unloading. The Judge found that Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs.

I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 (transcript attached as evidence for POPLA**).

District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

worldofmyown

Updated as per comments above

POPLA Ref No.xxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from Parking Eye Ltd.
The driver visited the car park of Mecca Bingo Wood Green for leisure and parked the car at the parking space provided by Mecca Bingo.
Although Mecca Bingo customers are eligible for free parking, there was no clear signage so the driver decided to pay for the parking.
The parking space has very limited lighting and it is very difficult to read anything at night on the signage board, especially for the person with glasses. Due to the difficulty and the strain on the eyes to read the signage the driver decided to go to the payment kiosk and pay for the parking, he put the money in the kiosk to pay for the parking but the kiosk took the money without issuing the ticket, then the driver tried again, again the kiosk again took the money without given a ticket, on the third try the kiosk gave the ticket and took the money. The driver frustrated with the kiosk took the ticket for 3 hours and paying more than required.
Parking Eye claims that the driver stayed in the car park for 3 hours 34 mins. But they are not considering the amount of time spent at the car park due to the payment kiosk not working properly and also not considering the fact that the payment kiosk taking money without issuing any ticket. They are also not considering the fact that the signage was so difficult to read that the driver had to give up on reading and just go straight to the payment kiosk. The Mecca Bingo Wood Green parking has 150 parking spaces but only 1 payment kiosk that too not checked and tested for working conditions.
A totally unfair parking ticket issued when the parking space is so poorly lit with only 1 non-working payment kiosk.
I would like to appeal to POPLA to reject this parking ticket on the following basis:
1. Owner’s approval & Landowner authority: The owner of the car park has approved the parking and have requested Parking Eye to cancel the ticket. ParkingEye has not requested to the owner’s request for cancellation. The email from the owner is attached with this appeal. The parking for the customers of Mecca Bingo is free but the driver still paid for 3 hours, this is a genuine case where the driver is not trying to abuse the parking space.
As ParkingEye does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - 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 (legal action regarding land use disputes generally being a matter for a landowner only).

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

2. No proper lighting: The parking space has no proper lighting and is very dark. This makes it very difficult for a person with glasses to read any signage. The proof of this can be seen in the evidence sent by Parking Eye with the images. I would like POPLA to request Parking Eye to provide details of visibility and lighting conditions at night at the parking space.
3. Faulty payment kiosk: There is only 1 payment kiosk for a parking with 150 parking spaces and the kiosk is also faulty. It only gave a parking ticket at the third try, taking money at every try. I request POPLA to request Parking Eye to provide details of when the payment kiosk was last tested for it’s working conditions by an engineer. It is also possible that the time on the payment kiosk were not correct.
4. No grace period: The time duration provided by ParkingEye doesn’t considers any grace period or the time spent firstly trying to read the signage without proper lights and secondly trying to pay for the parking with only 1 faulty payment kiosk. A driver with special need should be allowed extra time to park and pay.
5. No clear sign: On inquiring with the owner of the land (Mecca Bingo), it turned out that the parking is free for its customers without any time restrictions. No clear signs and instructions are provided for this, as this requires the driver to register the car at the site. Also, the signage is very high and can’t be read at night and while sitting inside the car. Also, on coming out of the car and standing close to the signage, it is very difficult to read the terms at night.
6. ANPR check: As I have seen how faulty the payment kiosk was, I am in doubt about the ANPR system as well. I never realised that I stayed for 3 hours 34 mins although I didn’t check the time I entered and the time I exited the parking. But given a faulty payment kiosk with no proper check, the ANPR camera could also be faulty. I therefore request POPLA to get the ANPR cameras checked and Parking Eye to provide evidence of when it was last tested for its working conditions. No signage for any cameras installed in the car park to take the entry and exit time.

Thanks

Regards,

worldofmyown

Is there anything else I can add to the above or should I go ahead and submit this?

Coupon-mad

3. Faulty payment kiosk: There is only 1 payment kiosk for a parking with 150 parking spaces and the kiosk is also faulty. It only gave a parking ticket at the third try, taking money at every try. I request POPLA to request Parking Eye to provide details of when the payment kiosk machine system was last tested for [STRIKE]it’s working conditions[/STRIKE] faults by an engineer. It is also possible that the time on the payment kiosk were not correct.

I put ParkingEye to strict proof of the payments made immediately before the recorded transaction, all of which related to this vehicle, and the terms on signs actually at the kiosk because it was not clear that MECCA Bingo customers were exempt from payments anyway.

I suggest the above additions and changes and I would remove this which never wins at POPLA:

6. ANPR check: As I have seen how faulty the payment kiosk was, I am in doubt about the ANPR system as well. I never realised that I stayed for 3 hours 34 mins although I didn’t check the time I entered and the time I exited the parking. But given a faulty payment kiosk with no proper check, the ANPR camera could also be faulty. I therefore request POPLA to get the ANPR cameras checked and Parking Eye to provide evidence of when it was last tested for its working conditions. No signage for any cameras installed in the car park to take the entry and exit time.

worldofmyown

I received a letter today from ParkingEye with the cancellation of the parking ticket and no payment is due.

I believe this is due to the owner of the car park asking Parking Eye for the cancellation.

Thanks for your help everyone.

Umkomaas

Umkomaas wrote: »

For all their other faults, PE are good at notifying cancellations in writing, usually 7-10 days.

You have it in writing from the principal to the contract that the charge is to be cancelled - keep that very safe.

worldofmyown wrote: »

I received a letter today from ParkingEye with the cancellation of the parking ticket and no payment is due.

I believe this is due to the owner of the car park asking Parking Eye for the cancellation.

Thanks for your help everyone.

I said they would. They are pretty good at notifying cancellations in writing.

As far as I can judge, it is their only redeeming characteristic.