Parkingeye De Bradelei House, Belper

Roger_Roger

I have received PCN from ParkingEye. 44 minutes in car park. £100 charge. I have appealed using standard template but had that turned down.

So now appealing to Popla.

I have taken below from stickies for newbies and templates. please can you advise how i might change

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

In cases with a keeper appellant, yet no POFA 'keeper 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. 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 keeper without a valid NTK.

As the keeper 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 keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper 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:

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.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper 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 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.’'



2) ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence. I require an unredacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract).
This is required so that I may see the definition of services provided by each party to the agreement, as well as any
exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed charge which may or may not be £
100
.
I do not believe that the contract allows ParkingEye to charge paying visitors £100 for a system or keypad error. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument. Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:
“
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.’






3) Breach of the BPA Code of Practice on ANPR.
It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR which requires checks to be made to ensure that a charge is appropriate before issuing a PCN. The payment made for 44 minutes would in fact be very easy to identify if this operator had carried out the necessary checks required in the BPA CoP, so I suggest these checks were not made and that the operator has contravened the requirements of professional diligence; a duty of consumer-facing service providers.

I put this operator to strict proof that these checks were made (showing full records from that day including the VRN list of payments around the time in question) and to explain why a charge was issued when they would indisputably have identified the matching 4 hour payment. The operator would have been in no doubt that the car parking was paid for, had they made the required checks.

And the situation is fully within this operators control. As cameras are used to record number plates entering and leaving then they should be connected to the ticket machines. As a number-plate begins to be typed, a truly connectedsystem would find the ANPR image and simply require the driver to confirm that this is their vehicle, and the system would show the time of arrival (all details known to the system already).



4) The signs are not prominent, clear or legible from all parking spaces so this is not an example of plain intelligible language contrary to the Consumer Rights Act 2015:
link

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:-
link
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 fo
nt size going by this guide:-
link

As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
link

''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 lette
rs at 3" or even larger.
''
...and the same chart is reproduced here:-

link

''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.

KeithP

You'll need to explain to PoPLA why there is "no POFA 'keeper liability' to rely upon".

Redx

and add a short , numbered , bullet point menu before the main appeal

Umkomaas

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 myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

Are PE attempting to transfer liability - what does your NtK say about PoFA and keeper liability? Usually found on the reverse of the letter.

3) Breach of the BPA Code of Practice on ANPR

There's a much longer and more detailed appeal point in the context of ANPR, developed over the past few weeks.

Have a look at post #10 (appeal points 7 & 8) in the following linked thread and pick through the points being made and adapt to your own appeal - be aware that the PPC in the link are not PE, so make sure you don't just blindly copy and paste the wrong PPC.

https://forums.moneysavingexpert.com/discussion/comment/74484007#Comment_74484007

I do not believe that the contract allows ParkingEye to charge paying visitors £100 for a system or keypad error.

Was it a P&D machine where your VRM had to be input? Or was it an iPad (type) keyboard in a reception area? Did the main signage draw your attention to the need for input? Were there supplementary signs inside the building informing of the need to input VRM details?

Do you have your own photos of the signs on site (and foyer)?