Parking Eye at Southampton Town Quay

winjaninja

Hi

At POPLA stage and have read the newbies thread especially #3 but I would like to pick someone's brains about a few key points e.g. signage, bye laws, registered keeper and PoFA 2012 etc.

(By the way I have plenty of links to support this post but I haven't got enough karma to post them - I can DM them maybe if there's anything you need to see.)

PCN is here: hxxp://imgur.com/a/MJ8sM

I did find a POPLA failure in this comment from May this year which made me stop and think about whether I'm onto a loser here:

...showthread.php?p=72516919&highlight=town+quay#2623

I checked the POPLA code and the deadline is 19th July so want to sort out the appeal ASAP. The PE appeal rejection letter simply stated that there was an overstay, the PCN stated the car stayed from just after midday until 16:03:46.

Let me know if you need to see the PCN.

POPLA has started adjudicating appeals regarding byelaws again, as stated on the front page of their site. The car park is definitely on ABP land as you can see from their website.

So to go through some questions:

1. Signage - google maps/@50.8956456,-1.4052544,3a,34.5y,214.85h,81.54t/data=!3m6!1e1!3m4!1sx8sQJ-o5KSyAF0L4U_E34A!2e0!7i13312!8i6656 - here's a streetview of the car park, if you drive around a bit you can see that there is a sign at the entrance but it's just a general warning. There is also a small sign on the pay machine that the lady with the pram is using but nothing else like the large tariff board until much further down the car park which wouldn't be seen if you used the pay machine. Compare that to the tariff I posted above. Also the PCN says that the sign is displayed clearly at the entrance but this isn't true. Is it me or is this a pretty good point for appeal?

2. Keeper liability - I'm pretty sure I selected "keeper" in the PE appeal and the PCN has a bit on the second page saying they got keeper's details from the DVLA using ANPR. So, how does keeper liability work? I haven't a clear idea and also, is there an interaction here between keeper liability and the bye-laws?

3. Contract with landowner ( is this aka Locus Standi?) - During the PE appeal (it wasn't very long, I just dashed something out ) I said that I did not believe they were properly authorized to operate on the land given the byelaws - but they didn't mention that when rejecting the appeal. Is that something I can make more of at POPLA stage?

4. PCN as received doesn't say what was paid for or what exactly the infraction was. I definitely did pay something so maybe it's just for the extra 2 minutes, or perhaps we screwed up and only paid for 3 hours or something, I really can't remember. Point being that at the PE appeal stage I said we thought we had paid the correct amount but they just said "you overstayed" but not how long or what was actually paid for. Isn't that against the BPA regs or something?

Aside from that I have seen the template and some example letters so I'll just throw the kitchen sink in when I appeal to POPLA. If I missed anything - please tell me!

Thank you for your kind attention.

Winj

Fruitcake

If you gave away the diver's identity to parking lie (like you have done in your post above) then the POFA 2012 is irrelevant as far as transferring liability to the keeper is concerned.

However, if byelaws apply, then in general only the vehicle owner can be held liable (for trespass,) not the driver or registered keeper. The DVLA do not hold owner details and the keeper is not obliged to reveal it. No assumption can be made as to the identity of the vehicle owner.

It sounds like your best appeal points are,

Byelaws because this is not relevant land and only the vehicle owner can be liable.
No standing to issue charges in their own name.
Not the landowner.
Possibly grace periods if they apply.
Non POFA 2012 compliant NTK if they don't know the identity of the driver and the NTK didn't meet the strict requirements of the POFA. You should edit your post if the scammers don't know the driver's identity. There is too much use of the first person singular.

To post (redacted) images, first upload them to a web hosting site such as tinypic or phtobucket, then post the URL here but change http to hxxp. Someone here will change them back to a live link

Do the latter for internet links.

Coupon-mad

I think if the driver has been admitted in the appeal (e.g. by choosing 'driver' in the drop-down menu when appealing - doh!) then they've blown the POFA because Harbour/Port byelaws hold the driver liable, not the owner (I think that's just Railway byelaws).

Also the PCN says that the sign is displayed clearly at the entrance but this isn't true. Is it me or is this a pretty good point for appeal?

Yes, can you prove it though?

You can see the overstay by simply logging into PE's website.

winjaninja

Pretty sure I put "keeper"... pretty sure. They don't send you a copy of the appeal (I should have screenshotted it) which makes me wonder if they can't just change the value in their database...

I can prove the signs are inadequate by taking pictures, maybe? It's not so far from me, I could drop by.

I guess I'll have to keep looking at byelaws cases. The POPLA rejection from this car park sounded bizarre - POPLA said the byelaws the appellant had cited didn't apply to his car because a car isn't a vehicle..!

Anyway thanks for help so far, I'll post a draft letter sometime this weekend.

Coupon-mad

I can prove the signs are inadequate by taking pictures, maybe? It's not so far from me, I could drop by.

That's good evidence, get the best angles to show no signs visible, or get a passenger to take a video from the view of a car.

winjaninja

Hi, went back to the car park today (on foot!) and they do have quite extensive signage now, although I suspect those signs were put up recently as they look pretty new and aren't on the google streetview of it (don't know how old those pictures are though). So, unless PE admit they changed the signs recently then I can't prove the signage was inadequate.

Can anyone see anything wrong with this sign? It is within a few metres of the pay machine. The second image was of a couple of different signs at the entrance. hxxps://imgur.com/a/cUNJA

I'm still writing up the POPLA appeal, will post later.

Coupon-mad

How long is the overstay, when you log into PE's website?

winjaninja

An hour, they said we paid for 3 and stayed 4. Looks like it might be true since there's a debit from the account that fits 3 hours, although I don't know what time we arrived or left.

Coupon-mad

OK, so you can't use grace periods.

You will have to major on 'no keeper liability' due to byelaws and word it to convince any random Assessor, as you have seen it is hit and miss.

Of course you will also have the usual other templates from post #3 of the NEWBIES thread.

winjaninja

Here's my first draft at a POPLA appeals letter, I mainly used templates but changed a few bits. Anything to add/remove/change?

I hereby appeal the parking charge made by PE (Parking Eye) levied against me for the period I spent on the Southampton Town Quay car park on the 28th May 2016. I do not believe the charge is fair for various reasons, which I will explain below.

1. Keeper liability with respect to byelaws. I am the registered keeper of the vehicle in question, however that car is also driven by my wife, who was present on that day. Therefore it is not known who was driving the car either on entering or leaving the car park, either by ourselves or by PE. I am aware of keeper liability described by the Protection of Freedoms Act 2012 (PoFA) however I do not believe that applies to the land in question here is not “relevant land” since it belongs to the port authority (ABP) which is subject to byelaws that are incompatible with PoFA. (See the ABP map here: [link]) Therefore there is no legal basis for PE to pursue the registered keeper for any charges. I believe this was confirmed by POPLA assessor Steve Macallan’s position on ABP Byelaws and what they consider not to be “relevant land” in an appeal to a PCN POPLA assessment and decision: 29/09/2016 Verification Code: 6062356150. This makes it clear that the Town Quay area is not relevant land as defined in POFA. Parking Eye Ltd are well aware of this fact as they were party to that ruling. The ABP Byelaws can be found here: [link]
2. Keeper liability in general
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. Faulty NTK -
The Notice to Keeper (NTK, aka PCN) I received is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.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(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) 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 3 weeks after the alleged event. Even if they had posted it on the same day that they describe as the ‘Date Issued’ (which ParkingEye never do in any case at all because they use a third party batch-mail system, Whistl or iMail or similar, which adds up to a week before a letter is posted) it would be impossible for the notice to have been actually delivered and 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. Furthermore, it is clear that ParkingEye know this because they have used the alternative version of their template ‘Parking Charge Notice’– the one with no reference to ‘keeper liability’ or the POFA. The PCN also fails to identify the facts that caused a charge to arise and fails to describe the unpaid parking charges that they allege were unpaid at the machine. 7(2) states:
“The notice must - (b) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose...and the other facts that made those charges payable...’’
This NTK stated the supposed arrival and departure times (this is entirely based upon the reliability and security of their ANPR system) but did not state what we had paid or what the £100 charge was for with any detail. Furthermore, in their letter of rejection to the appeal I lodged with them (which I think is clearly an automated system and is therefore not a valid procedure anyway) they did not make any response whatsoever to the appeal that I had made and the letter was simple a template with no wording relevant to this case at all.
Furthermore, the NTK/PCN did not mention the existence of byelaws at all and also did not mention that as a result, any alleged vehicular-related infringements would have to be heard before a magistrates court as a trespass case, which seems to be essential and critical information that was not relayed to the vehicle’s keeper.

4. Excessive charge in relation to supposed losses suffered by the landowner. Although I am aware of the Beavis vs PE ruling that has been used as a precedent in subsequent court cases concerning parking charges, I believe that case is not relevant to this case for the following reasons:
a. The Beavis vs PE case was relevant to a different piece of land with a different commercial arrangement between the landowner and PE.
b. In the Beavis vs PE case, the motorist parked exceeded a free parking period whereas PE allege that whoever was driving my car paid for a ticket but did not leave the car park within the relevant time limit. In this case, the difference between what PE allege were the amount paid and the correct amount was only £1. PE charge explicit amounts for fixed periods of time in this car park and so should, depending on their commercial arrangement with ABP, not need to make up their income with penalty charges. This is different to the Beavis vs PE case because PE in that arrangement could only make money by levying charges for overstays.
c. The fact that the car park was almost empty (it being a quiet Sunday afternoon) and almost all commercial services had ceased trading for the day by that point, means that the landowner did not suffer any loss whatsoever (because nobody else was prevented from parking there) and that the alleged overstay, if it did even happen, is basically irrelevant. Therefore, in this case GPEOL should still apply and any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair.

d. A £100 fine is grossly disproportionate to the cost of 1 hour of parking which PE alleges to be the period of overstay.

5. Procedural irregularities. I believe I paid in full for the parking and stated so when making an appeal to PE on their website, however no evidence was supplied to the contrary. In fact there was no explanation for the appeal rejection whatsoever. I draw your attention to the BPA code of practice document [link] section 22.4 “If a driver or keeper appeals a parking charge you must review the case and decide whether to uphold the parking charge and explain why it was issued and should therefore be paid” but this was not done and in fact the rejection letter was simply an automated response with no wording relevant to this case. It can’t be acceptable for an appeal to be rejected out-of-hand by an automated system like this because it implies that the appeal was never read by PE. Therefore PE has clearly deviated from the BPA guidelines.

No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator 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

6. ANPR reliability
Parking Eye have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed
when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Parking Eye has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.

winjaninja

Success! POPLA responded by email (I'll post in the outcome sticky thread but here too):

Dear Mr X

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference nnnnn.

Parking Eye Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

ET6116/001

There was also a note from PE:

Dear Sir / Madam,
We refer to the Parking Charge incurred on xx May 2017 at x oclock, at Town Quay (Short
Stay), Southampton car park.
As a gesture of goodwill, we can confirm that this Parking Charge has now been
cancelled and there is no outstanding payment due.
We understand that receiving a Parking Charge Notice may be inconvenient, however,
issuing Parking Charges for breaches of the parking terms and conditions at this car park
is necessary to ensure a better overall parking experience for all users of the facilities.
To avoid potential future inconvenience, we would kindly request you follow the parking
terms and conditions displayed on the signage throughout the car park.

What does this mean? Why did they cancel the parking charge? I am quite interested in this sort of thing because a few years ago I got let off a council ticket on the basis that the entire RPZ was illegal and they sent me a letter like this, very nonspecific. Makes me think I might have struck on something they know won't work in court?