Premier Park - Torquay Marina Car Park

Mandalorian

I am at the POPLA appeal stage regarding a ticket issued at Torquay Marina Car Park by Premier Parking.
Having explored this and other forums I included the argument that the marina car park was not relevant land in relation to POFA. My evidence to POPLA also included comments from their lead adjudicator confirming that this was the case.

Premier Park have included the information below in their counter evidence pack. I suspect this will sway the POPLA adjudicator in favour of Premier Park and that my appeal will subsequently fail.

However, I felt it's important that this information is put out there in the hope that it will help others in the event that they also receive a PCN at Torquay Marina. It may be that other forum members can advise regarding their solicitors comments.

Torquay Marina Car Park – Tor Bay Harbour Byelaws 1994

Confirmation regarding Bye-Laws – this confirmation has been provided by our client MDL Marinas Ltd and their solicitor.

We have been asked to consider whether the Tor Bay Harbour Byelaws (1994) apply to Marina Developments’ multi-storey car park, and if so, their effect as regards the ability (via Premier Park Ltd or otherwise) to levy charges for the parking of vehicles (including fines for non-payment or overstaying).

Our advice is below:

Executive summary

1. The Byelaws do not apply to the car park: they only apply to the “Harbour”, and at most also the “Harbour Estate”
2. The ”Harbour” is the seaward area lying below the level of high water. The “Harbour Estate” comprises land and buildings (and piers, wharves etc) vested in [owned by] or occupied by the Council as Harbour Authority if “used for the purpose of the Harbour undertaking.
3. Marina Developments’ car park is entirely landward, lying above the level of highwater, and is not “used for the purpose of the Harbour undertaking”. It has been leased by the Council to Marina Developments for its own commercial interests and benefit. In particular, the general public can use the car park, in return for paying a charge, even if not visiting the Harbour.
4. In any event, the Byelaws are not, and do not purport to be, an exclusive set of rules and they do not prevent Marina Developments from levying parking charges (including via any third party agents that it chooses to use), which is a separate private civil contractual issue.

:eek:

Coupon-mad

Premier Park have included the information below in their counter evidence pack. I suspect this will sway the POPLA adjudicator in favour of Premier Park and that my appeal will subsequently fail.

They try very hard and sometimes posters have lost against them at POPLA.

Regardless of POPLA decisions, no-one pays them here! It matters not if you lose.

Mandalorian

I lost my POPLA appeal. Here is their decision: -

Decision
Unsuccessful

Assessor Name
Amy Smith

Assessor summary of operator case
The operator’s case is that the parking session was expired or unpaid.

Assessor summary of your case
The appellant’s case is that on the date of the parking event they were the vehicle’s keeper. The appellant states has raised the British Parking Association (BPA) Code of Practice section 13 which covers grace periods as a ground for appeal. They state that it is reasonable to state that the grace period at the start of the contract should be 10 minutes, and at the end should be 10 minutes, providing an overall grace period of 20 minutes. The appellant states that the operator has no authority to issue or pursue charges to or form contracts with drivers using this site. The appellant says that Torbay Marina falls within the Harbour Estate and therefore a keeper cannot be held liable, as it is not relevant land. The appellant has provided evidence to support their submission. This includes a copy of the Torbay Harbour Byelaws, a copy of a complaint response from the POPLA lead adjudicator John Gallagher in relation to Byelaws.

Assessor supporting rational for decision
The driver of the vehicle has not been named. The operator is pursuing the registered keeper for the parking charge. As such I need to consult with schedule 4 section 9 of the Protection of Freedoms Act (PoFA) 2012 in order to determine that liability of the parking charge was successfully transferred from the driver to the registered keeper. Having viewed the notice to keeper I am satisfied that liability of the parking charge was successfully transferred to the registered keeper. When entering private land, motorists are expected to comply with the terms and conditions. The operator has provided images of the signage laid out at the site. The terms and conditions of the site state: “Up to 30 min £0.60…Parking tariffs apply 24 hours a day, 7 days a week…If you enter or park on this land contravening the above terms & conditions, you are agreeing to pay: Parking Charge Notice (PCN) £100.” The operator has provided photographic evidence of vehicle, WK06 VYD, entering the site at 16:56, and exiting at 17:14, totalling a stay of 17 minutes spent at site. The operator maintains a list of vehicles that have made a payment. The operator has provided a copy of this list that shows that when searching for the appellant’s vehicle it was not registered against a payment. The appellant’s case is that on the date of the parking event they were the vehicle’s keeper. The appellant states has raised the BPA Code of Practice section 13 which covers grace periods as a ground for appeal. They state that it is reasonable to state that the grace period at the start of the contract should be 10 minutes, and at the end should be 10 minutes, providing an overall grace period of 20 minutes.

The British Parking Association (BPA) Code of Practice states in section 19: “If the driver breaks the contract, for example by not paying the tariff fee or by staying longer than the time paid for, or if they trespass on your land, they may be liable for parking charges. These charges must be shown clearly and fully to the driver on the signs which contain your terms and conditions.” It also states in section 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.” It states further in section 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 BPA Code of Practice offers a reasonable grace period at the start of the contract, and a minimum of 10 minutes at the end of the contract. I am not satisfied that a grace period would be granted in this instance as the appellant has not stated any circumstances or information which would allow me to consider a grace period. I acknowledge the appellant’s comments. However, it is the motorist’s responsibility to ensure
that they park in accordance with the terms and conditions on private land. As the vehicle was parked without a payment being made the terms and conditions of the site were not met. The appellant states that the operator has no authority to issue or pursue charges to or form
contracts with drivers using this site. Having viewed the evidence provided by the operator, I can see that it has provided a copy of a redacted contract between itself and the landowner. This contract displays that the operator began operating on this land on 4 December 2014. This is also signed and dated and as such I am satisfied that the authority was granted to the operator to issue parking charges on this land on the date of the parking event. The appellant says that Torbay Marina falls within the Harbour Estate and therefore a keeper cannot be held liable, as it is not relevant land. The appellant has provided evidence to support their submission. This includes a copy of the Torbay Harbour Byelaws, a copy of a complaint response from the POPLA lead adjudicator John Gallagher in relation to Byelaws. Having viewed the operator’s evidence it has provided a copy of confirmation from their solicitors advising that the Byelaws do not apply to this site, as it only applies to the harbour. Further the operator has not issued the parking charge under the Byelaws, and as such I do not need to consider them. Upon review of the evidence provided, I conclude that the operator has correctly issued the parking charge.



I'm not really sure what to do now? I know Coupon-mad, who's advice I respect tremendously, says no-one pays but how do I get to that stage?


Any advice would be gratefully received.

Umkomaas

Having viewed the operator’s evidence it has provided a copy of confirmation from their solicitors advising that the Byelaws do not apply to this site, as it only applies to the harbour.

Well it would be surprising if their Solicitors said anything else. Hardly an impartial view.

Do a Google search on Torbay Harbour Byelaws and see if that can give you any information to counter the above assertion.

I'm not really sure what to do now? I know Coupon-mad, who's advice I respect tremendously, says no-one pays but how do I get to that stage?

The PPC will invoice you again. You either ignore it, or you take the bull by the horns and invite them to issue a court claim so that a judge can look closely and impartially at the actual Byelaws.

PPCs are reluctant (certainly in the airport sector) to chance their arm on a Byelaws case, because if the judge finds it to be not relevant land for Keeper Liability, the goose’s golden egg orifice suffers a a rather nasty blockage!

Mandalorian

I thought the same about the solicitors comments - they would say that, wouldn't they!
So to counter I've written to Torbay Council to ascertain their view on the extent of the Harbour bye-laws.


A County Court judgement in relation to the issue of relevant land at this site would certainly provide persuasive evidence for future defendants/claimants.

Coupon-mad

Come back if they send a LBC or an actual claim. Ignore desperate demand letters.