1st Parking Charge Notice - Should I Pay Up?

Spartan_Saver

I was given a PCN by Parking Eye as I had to take a nap in Gallagher Park in Bristol back in May after a long journey on the motor way. I appealed and Parking Eye rejected my claim as it was pitch black. This is what I wrote to them initially:


Dear Sir/Madam,

Re PCN number: 573284/333658

I appeal and dispute your purported 'parking charge', as the keeper of the vehicle. I deny any liability.

There will be no admissions as to who was driving and no assumptions can be drawn, nor was there any agreed contract. Upon entrance to the site, your signage terms fail the test of 'large lettering' and prominence of the parking charge, as established in ParkingEye Ltd v Beavis, which is fully distinguished.

Should you fail to cancel this PCN, I require the following information with your rejection letter:

Provide all images taken of this vehicle on that day and the signs at the material location and do not withhold any images or data later relied on for POPLA or court.

2. Explain why you operate in disregard of the GDPR and ICO rules. Nowhere do you inform clearly the public of the terms and conditions of accessing the site BEFORE entering the car park - why not?

3. Further to this, the only visible sign upon entry at the car park states that there is a 3 hour maximum stay, yet it fails to clearly mention that there is no parking between 00:00 - 06:00.

4. The rest of the signs were unlit and not visible to the driver in the dark at the time of the vehicle’s entry at 3:30 am. The car park’s lightning is insufficient for a driver to notice let alone read the signs stating the car park’s full terms and conditions.

5. On page 2 of your ‘Parking Charge Notice’ you state “if the vehicle remains within the car park longer than the 0 hours 0 minutes maximum stay time a ‘parking charge’ is applicable”. Had the vehicle entered the premises and the driver noticed the signage then it would have insufficient time to leave the car park and avoid your purported ‘parking charge’ as it would have to exceed the stated 0 hours and 0 minutes for the driver to enter and leave the premises. Again this due to the failure on your behalf to clearly display the car park’s full terms and conditions in the site’s entrance.

6. More importantly is the following: A prohibition on parking means there was no licence to park offered at all, and therefore the elements of a contract (offering something of value, consideration flowing from both sides and mutual acceptance of contractual terms) cannot have occurred. There was no contract and this ‘parking charge’ is not enforceable. This was made very clear in your firm’s case : Parking Eye v Beavis in 2015, where it was said that they could NOT have pursued damages for trespass because there was no loss and because they were not the party in possession of the land.

7. If the site owners genuinely believe the vehicle was trespassing overnight, then they are the only party who can sue the driver under tort of trespass.

Firms of your ilk were unanimously criticised in 2018 as operating an 'outrageous scam' (Hansard 2.2.18). The BPA and IPC were heavily criticised too, and both appeals systems were condemned. Hardly surprising for an industry where so-called AOS members admitted to letting victims 'futilely go through the motions' of appeal and saying on camera 'we make it up sometimes' (BBC Watchdog).

I will be making a formal complaint about your predatory and aggressive conduct to your client landowner, as well as complaining in writing to my MP and ensuring that they are appraised of the debate where Parliament agreed by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists...should not have to put up with this''.

Photos of the car park and the exact spot where the driver parked are below:

Formal note:

Service of any rejection letter/POPLA code and/or any legal documents by email is expressly disallowed. All responses to me from this point forward must be made by the Royal Mail postal service. Regardless of any MCOL online system, in this case, service of any court claim must only be made by first class post to the latest address provided by me.

Yours faithfully,

The Keeper

Coupon-mad

A prohibition on parking means there was no licence to park offered at all, and therefore the elements of a contract (offering something of value, consideration flowing from both sides, a meeting of minds, acceptance of contractual terms) cannot have occurred.

And in the dark I doubt the sign can be read at all. PE lighting isn't great.

So if it were me I would submit an appeal as the DRIVER (no need to hide behind 'keeper' in your case, unless the back of the PCN does NOT mention POFA/29 days/keeper will be liable).

I would not use the forum template appeal, in your unusual case!

I would write what I put in my first paragraph, in your own words, and point out that if the site owners believed the vehicle was trespassing overnight, then they are the only party who can sue under tort of trespass.

No contract, no parking charge allowable, and PE know this from PE v Beavis in 2015, where it was said that they could NOT have pursued damages for trespass because there was no loss and because they were not the party in possession of the land.

This will be an interesting one at POPLA, to see if they get it. I would write just three POPLA points when you get to that stage:

- prohibitive signs, no licence to park, no offer of anything of value, ergo no contract (as explained above)

- unlit signs not seen anyway

- no landowner authority (as a safety net point, using the usual template for that)

Do include in BOTH appeal stages, the fact the place was pitch black and you could not have seen the prohibition on parking overnight and could not be reasonably expected to guess, and even if you had guessed or read it, the sign offers no licence to park and is not a contractual parking charge, and would be unrecoverable in court for PE.

Certainly likely to be winnable in front of a Judge, IMHO, with that sign.

Spartan_Saver

Thanks for all of your help.

KeithP

Spartan_Saver wrote: »

There will be no admissions as to who was driving...

If you are going to use that in your appeal, you would be wise to adjust your opening post (and where you have quoted it in your latest post) to remove any clues to the driver's identity.

For example, your last sentence should perhaps look something like:

Photos of car park and the exact spot where the driver parked are below :

Please review and adjust the rest of your post similarly.

The PPCs are known to trawl forums like this just waiting for people to trip themselves up and can use your posts against you.

Spartan_Saver

KeithP wrote: »

If you are going to use that in your appeal, you would be wise to adjust your opening post (and where you have quoted it in your latest post) to remove any clues to the driver's identity.

For example, your last sentence should perhaps look something like:

Photos of car park and the exact spot where the driver parked are below :

Please review and adjust the rest of your post similarly.

The PPCs are known to trawl forums like this just waiting for people to trip themselves up and can use your posts against you.

Great advice - Thank you

KeithP

No-one suggested you should delete the whole of your opening post and subsequent posts. Crazy!!

What a selfish attitude to delete all substance from the thread.

You're on your own now as far as I'm concerned.

Umkomaas

Waste of time and effort!

Coupon-mad

Spartan_Saver wrote: »

There will be no admissions as to who was driving...

WHY?

Kind of hoped I'd made it clear exactly how to appeal this one:

So if it were me I would submit an appeal as the DRIVER (no need to hide behind 'keeper' in your case, unless the back of the PCN does NOT mention POFA/29 days/keeper will be liable).

I would not use the forum template appeal, in your unusual case!

Spartan_Saver

Good news - POPLA ruled in my favour. BIG thank you to everyone that contributed to this thread and helped me. Below is the summary of the case. In essence it is the parking companies responsibility that the signs are visible in the darkness - which they weren't.


Decision - Successful
Assessor Name xxxxx

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to either not purchasing a valid pay and display ticket or parking without a valid permit or by not entering your vehicle registration details via the terminal.

Assessor summary of your case
The appellant’s case is that the signs were unlit and not visible to the driver in the dark at the time of the vehicles entry into the car park at 03:30.

Assessor supporting rational for decision
In terms of POPLA appeals, the burden of proof rests with the operator to provide clear evidence of the contravention it alleges occurred, and consequently, that it issued the PCN correctly. The operator has provided photographs of the terms and conditions, as displayed throughout the site, which state, “…No parking between 00:00 – 06:00…Failure to comply with terms and conditions will result in a parking charge of £100 The operator has provided images from the Automatic Number Plate Recognition (ANPR) system, which shows the appellant’s vehicle entered the site at 03:30 and exited the site at 04:50. A total stay of one hour and 20 minutes. The appellant explains that when he entered the car park, it was in darkness and he could not see any signs advising of the terms and conditions of the site. Given this, I must consider the signage in place at this location to see if it was sufficient to bring the terms and conditions to the attention of the driver when entering and parking at the location. Appendix B of the BPA Code of Practice states, “Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.” In this case, the operator has not provided any images of the signage during the hours of darkness, which is when the appellant was on site. As such, we don’t know that the signs are actually lit/sufficiently lit. As the appellant has said that the signs are not visible in the dark, it falls to the operator to show that they are visible. As they have failed to do that, then we can’t determine that the appellant did see the signs. After considering the evidence provided by both the appellant and the operator, I am not satisfied that there was sufficient signage in place at the time of the contravention. As such, I can only conclude that the PCN has been issued incorrectly.

Coupon-mad

In this case, the operator has not provided any images of the signage during the hours of darkness, which is when the appellant was on site. As such, we don’t know that the signs are actually lit/sufficiently lit. As the appellant has said that the signs are not visible in the dark, it falls to the operator to show that they are visible. As they have failed to do that, then we can’t determine that the appellant did see the signs.

Yay well done! :T

Please link this thread to an update 'success' post, in POPLA DECISIONS.

Spartan_Saver

Coupon-mad wrote: »

Yay well done! :T

Please link this thread to an update 'success' post, in POPLA DECISIONS.

Done - it is now in the decisions thread. I hope others will find this post useful. Thank you MSE