PCN - ParkingEye - Aire street Leeds

Coupon-mad

BTW I have just received a penalty charge notice: Performing a prohibited turn no right turn FML!

Pepipoo forum will get you off that one...

http://forums.pepipoo.com/index.php?showforum=30

No Hotmail email addresses for pepipoo. Register free and post pics of the TFL or Council letter.

boothzor

I have found this POPLA appeal on the forums regarding the same circumstances. But I don't think it is a golden ticket one that deals with POFA and keeper liability.

Do I need to find a POPLA appeal regarding the same circumstances or any golden ticket ones. I do apologise for all these questions just want to be 100% correct in what I'm doing.

https://forums.moneysavingexpert.com/discussion/4833506 Post#17,18

I am the registered keeper of vehicle reg xxx xxxx and I contend that I am not liable for the parking charge.

I have researched the matter, taken legal advice and would like to point out the following as my appeal against said charge:

1) Unclear and misleading signage.
The driver entered the car park at 19:46 on Friday 22nd November. The car parking notices are poorly lit and are above eye level. The driver noted on the tariff above the ticket machine that chargeable hours were Monday-Friday 8am – 6pm (see photo attached), leading them to believe that their car was parked outside of these hours. The driver returned to the car 36 minutes later.

I contend that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand.

I require that the Operator provides documentary evidence and signage map/photos on this point, lighting at night, colours used in cases of driver colour blindness and compare the signs to the BPA Code of Practice requirements.


2) The charge is a penalty and not a genuine pre-estimate of loss. The £100 charge asked for, far exceeds the cost to the landowner who would have received £0.00 from any vehicles parked as the signage states that charges apply Monday-Friday 8am – 6pm.
In the appeal Parking Eye did not address this issue, and has not stated why they feel a £100 charge is an appropriate pre-estimate of loss.
For this charge to be justified a full breakdown of the costs Parking Eye has suffered as a result of the car being parked at the car park is required and should add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, admin, operating costs. parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.

3) Proprietary Interest
As the registered keeper I do not believe that Parking Eye has demonstrated a proprietary interest in the land, because they have no legal possession which would give Parking Eye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Parking Eye's lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge.
The registered keeper believes there is no contract with the landowner/occupier that entitles them to levy these charges and to pursue them in the courts in their own name as creditor. Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant. Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.
Quick Reply QuoteMulti-quoteReport
Users saying Thanks (1)
User avatar
lucilemcneil
9
POSTS
1
THANKS

What's this?
LUCILEMCNEIL
View public profile
Send private message
Find more posts
View all thanked posts
Add to contacts
#18 17th Dec 13, 8:53 PM
Also - I would add this under the GPEOL point (2)....

This charge from ParkingEye as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. And in my case this was a free car park with no payment due whatsoever.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

ParkingEye and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect ParkingEye might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

No doubt ParkingEye will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''

boothzor

Yes I've just posted a thread on the matter on there now. BTW...... last week... got fined £75.00 for dropping a cigarette end.

Coupon-mad

2) The charge is a penalty and not a genuine pre-estimate of loss.

This tells me you've used an ancient example - please bin it.

Why not just search the forum for 'ParkingEye POPLA no keeper liability hirer POFA' and 'show POSTS' (never threads).

Coupon-mad

boothzor wrote: »

Yes I've just posted a thread on the matter on there now. BTW...... last week... got fined £75.00 for dropping a cigarette end.

Covered in other threads - another scam but supported by Councils.

KeithP

boothzor wrote: »

KeithP wrote: »

Your original post gives too many clues as to who the driver was.

Suggest you edit it to talk about "the driver", "the keeper".
There is no place for "I", "me", etc.

Thank you for the advice KeithP! That is what I'll do going forward.

Not just 'going forward'.

You still need to edit your original post.

PPCs trawl forums like this waiting for people to trip themselves up.

boothzor

As the hirer of the above vehicle, I wish to appeal the parking charge notice ParkingEye Ltd issued against the mentioned vehicle. I believe the parking charge notice should be cancelled based on the following grounds:

1. ParkingEye Ltd has failed to meet the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”)

2. No evidence that the appellant is the individual liable – No Driver Liability

3. The signs in this car park are not prominent, clear or legible from all parking spaces, there is no clear delimitations of the car park area and there is insufficient notice of the sum of the parking charge itself,

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



1. ParkingEye Ltd has failed to meet the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”)

In order to be able to rely upon POFA to claim unpaid parking charges from a vehicle’s hirer, a private parking company must deliver a Notice to Hirer that fully meets the strict requirements of Schedule 4 of POFA.

ParkingEye Ltd’s Parking Charge Notice (“PCN”) issued to me on 02/06/2017 failed to comply with these strict requirements and ParkingEye Ltd has therefore forfeited any right to hold me liable for this PCN in their capacity as the vehicle’s hirer.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA, with Paragraph 14 setting out the conditions that the Creditor must meet in order to be able to hold the hirer liable for an unpaid parking charge.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; b) a copy of the hire agreement; and c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as registered keeper)).

ParkingEye Ltd did not provide me with copies of any of these documents.

Furthermore, ParkingEye Ltd has failed to comply with Paragraph 14 (5) of Schedule 4, specifically Paragraph 14 (5) (b) which requires that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. ParkingEye’s Notice to Hirer refers the hirer only to the Notice to Keeper itself, not to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that ParkingEye Ltd did not provide me with a copy of the Notice to Keeper as required under Paragraph 14 (2) (a). Consequently, ParkingEye Ltd failed to provide me with much of the information that was required to be included in the Notice to Keeper under Paragraph 9 (2).

I refer to previous POPLA Case Refs.6060986078 and 6061027318 (amongst others) in which POPLA determined that PCNs issued by ParkingEye Ltd to vehicle hirers are not compliant as a Notice to Hirer for the purpose of POFA.

For this reason alone, POPLA may reasonably determine that ParkingEye Ltd has no valid claim against me and that the appeal should therefore be up held.

2. No evidence that the appellant is the individual liable – No Driver Liability

The operator has not shown that the entity who it is pursuing is in fact the driver who may have been potentially liable for the charge.

In cases with a hirer appellant, yet no POFA 'hirer 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.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as they are 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 hirer without a valid NTK.

As the hirer of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the hirer and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a hirer appellant to be deemed to be the liable party.

The burden of proof rests with the Operator 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.

Furthermore, 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:

“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.''

Therefore, no lawful right exists to pursue unpaid parking charges from me as hirer of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye Ltd 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. Misleading or unclear signage

The alleged breach, according to Parking Eye, is in contravention of terms and conditions “clearly displayed at the entrance to and throughout the car park”. It would however appear from perusing Google Earth images (the only option available to the appellant at time of appeal) that the one single small sign at the entrance could not be read fully and properly without stopping.

The picture of the sign at the entrance, collected from Google Earth, shows a small sign:


GOOGLE STREET VIEW IMAGE OF ENTERANCE TO CARPARK



The signs and the machine tariff board were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:

68 Requirement for transparency (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent. (2) A consumer notice is transparent for the purposes of subsection (1)if it is expressed in plain and intelligible language and it is legible.

It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:

http://imgur.com/a/AkMCN

The terms appear to be displayed inadequately at the machine, where only the tariffs are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size. As evidence that this is inadequate notice, Letter Height Visibility is discussed here:

signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. However, if you…want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:-

ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''. ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'.

I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up.



Separately, I can find no trace of a decided planning application relating to the Aire Street Leeds car park for the ParkingEye signage and cameras. Assuming that indeed no planning application was submitted or approved, then the signs hold no validity even were they properly sized, properly legible and properly placed.

In addition, Paragraph 21.1 of the CoP advises operators that they may use ANPR camera technology to manage parking in private car parks, as long as they do this in a ''reasonable, consistent and transparent manner''. The CoP requires that signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

These signs do not comply with these requirements because the car park signage failed to notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside/at the site boundary. It is not stated that the cameras are not for security (as one would expect from a mere camera icon) but are there in order to calculate 'total stay' for the purpose of generating profit from PCNs.

In fact, any reasonable driver would believe that they are authorised to park and rely on their own timekeeping. In circumstances where the terms of a notice are not negotiable (as with car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity in those terms, the rule of contra proferentem shall apply. This is confirmed within the Consumer Rights Act 2015 including:

Paragraph 68: 'Requirement for Transparency:

(1) 'A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent'.

(2) 'A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible'.

and Paragraph 69: 'Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings the meaning that is most favourable to the consumer is to prevail.'

The driver could never guess that they are responsible for taking into account a period that is somehow back-timed to include a secret timing when the clock started (unbeknown to drivers) from their arrival in moving traffic from the road. Are drivers here meant to be psychic and look at their watch as they drive off the road? If they are, then this must be transparently stated at the entrance and the machine clocks must be set to start a period of parking from arrival, by linking the systems.

Withholding material information from a consumer regarding the 'time when the clock starts ticking' and the commercial purpose of the ANPR cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

legislation.gov.uk/ukdsi/ 2008/9780110811574/contents

Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—!

(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''

4. 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 the operator is to 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 it is suggested 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 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 the operator is put 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.

boothzor

Okay so that is a direct copy and paste from another thread: https://forums.moneysavingexpert.com/discussion/5667536

And now im right in thinking I need to adapt it slightly to suit? And that should be okay?

This is going straight past my head O.o stressed out to the max.

boothzor

Sorry Coupon-Mad, I must be getting on your nerves but this is flying past my head.

Coupon-mad

We'll all be around later - for now, making the family dinner beckons!