Parking Eye Southampton Town Quay POPLA letter review/advice

Jason.rangou

Good morning



Somebody other myself has received a PCN from Parking Eye.
I believe this is because a ticket was not purchased because of their automated system malfunctioning at the time. That said after an unsuccessful appeal a POPLA reference has now been given.

Last year A similar incident ocurred and a successful POPLA appeal lettert was drafted with the incredible help of members here.

I ask politely those kind,respected and appreciated members here today to spend a little of their time to kindly look over last years successful template below and advise if this is still current and/or advice with what needs ammending if at all possible.


Thank you

Jason.rangou

Parking Charge Notice –
Issued by ParkingEye
POPLA Ref:

I am writing to you to lodge a formal appeal against a parking charge notice (PCN) sent to myself as registered keeper of a vehicle, in respect of an alleged breach of parking conditions at Southampton Town Quay (short stay) car park on 30th May 2018 .

I appeal to you that I am not liable for this parking charge on the basis of the following points:

1) Parking at Southampton Town Quay is Non-relevant land within the meaning of the POFA 2012 and subject to Byelaws.

2) No proof that the individual they are pursuing is the driver liable/The operator’s PCN is not compliant with the Protection of Freedoms Act 2012



3) ParkingEye have provided no evidence of Landowner Authority - the operator (ParkingEye) is put to strict proof of full compliance with the BPA Code of Practice


4) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
5) The car park signage failed notify the driver that ParkingEye Ltd intended to exercise its rights under POFA
6) The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.





1 Parking at Southampton Town Quay is Non-relevant land within the meaning of the POFA 2012 and subject to Byelaws.

Paragraph 3(1) of Schedule 4 of POFA 2012 states that in this Schedule “relevant land” means any land (including land above or below ground level) other than:

a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
b) a parking place which is provided or controlled by a traffic authority;
c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

Although ParkingEye’s PCN makes no mention of Southampton Town Quay being subject to statutory control, parking at this site is subject to Associated British Ports Southampton Harbour Byelaws 2003 (“the ABP Byelaws”); this location is therefore not relevant land for the purposes of POFA 2012.

I include with my submission a copy of the ABP Byelaws, drawing POPLA’s attention to Part IV (Goods and Road and Rail Traffic), in particular the terms of Paragraphs 37 and 39 which specifically refer to leaving vehicles unattended (i.e. parking) thereby confirming that parking on the Town Quay land is subject to to Non-relevant land where Byelaws apply


I also draw POPLA's attention to the map on Page 20 of the ABP Byelaws which confirms that Southampton Town Quay lies within the boundaries of the Port of Southampton for the purpose of the ABP Byelaws. I also include a more detailed ABP map which defines more clearly the boundaries of the Port of Southampton.

POPLA has previously determined that Southampton Town Quay is not relevant land; I refer you to POPLA case ref.6062356150 29/09/2016
“I can only conclude that the car park is indeed on land under statutory control and cannot be considered ‘relevant land’ for the purposes of PoFA 2012. As the site is not located on ‘relevant land’, the operator is unable to rely on PoFA 2012 in order to transfer liability to the hirer. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal”
Therefore ParkingEye has no lawful right to rely upon POFA 2012 to claim unpaid parking charges from the vehicle’s keeper.

2 No proof that the individual they are pursuing is the driver liable/The operator’s PCN is not compliant with the Protection of Freedoms Act 2012

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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. 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 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 because the fact remains I am only 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, 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.

Furthermore, the vital matter of full compliance with the POFA 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

POFA Para 9(2)(f) states that the Notice to Keeper must

‘warn the keeper that if after the period of 28 days […]
(i) the amount of the unpaid parking charges […] has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will have the right to recover from the keeper so much of that amount as remains unpaid’.

As the Parking Charge Notice received in this instance does not include this warning, the operator 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. This is a clear and strict requirement under the relevant legislation that ParkingEye have not complied with and as such cannot rely upon to hold me liable as keeper.


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.''
3. ParkingEye have provided no evidence of Landowner Authority - the operator (ParkingEye) 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 code of practice (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
4 The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Jason.rangou

Here is the Town Quay sign:

Please note, this sign was NOT at the entrance to the car park but some way in, quite high up above a pay machine in the Red zone (permit parking) area. The wording on this sign is crowded and cluttered with a lack of white space as a background, with far too much information for a motorist to take in while driving past, and the wording of the terms and conditions at the bottom of the sign is so small it is virtually illegible. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.


There are neither full terms nor the sum of the parking charge displayed at the entrance to the site, or in one half of the main car park, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one. It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, most signs do not clearly mention the parking charge.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

The terms, where displayed at all, are displayed inadequately, in letters approximately a quarter inch high, with the charge in letters just one inch high:

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

http://www.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. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and 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:
http://www.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.''

So, a letter height of just a quarter inch showing the terms and one inch showing the 'charge', placed high on a wall or pole and buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when on a pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it with perhaps a torch and/or magnifying glass to be able to read the terms. To read the terms and conditions at all one would need to be at most 10 feet from the sign, but a driver driving past any signs in this car park would be more than 20 feet away.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a '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.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.


5. The car park signage failed notify the driver that ParkingEye Ltd intended to exercise its rights under POFA
In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including;

Paragraph 68 (1): a trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

Paragraph 68 (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.

Paragraph 69 (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.

Also, Paragraph 21.1 of the British Parking Association Ltd Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. This paragraph also instructs operators that signs at the car park must tell drivers that they are using this technology and what they will use the data captured by ANPR cameras for.

I have good reason to believe that the car park signs did not clearly advise the driver that ParkingEye Ltd intended to use the data captured by its ANPR cameras as a means to pursue the vehicle’s keeper under POFA for parking charges in the event that they remained unpaid by the driver.

The establishment of keeper liability under POFA is not automatic; it is conditional upon the operator a) choosing to exercise its right to use the provisions of POFA and b) then fully complying with the strict requirements of POFA.

In the absence of the car park signs giving a clear warning that ParkingEye Ltd intended to use POFA to claim keeper liability, the driver (in accordance with their rights under Paragraph 69 of the Consumer Protection Act 2015) was reasonably entitled to conclude that ParkingEye Ltd did not intend to use POFA to pursue keeper liability.

6. The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.
ParkingEye Ltd is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require ParkingEye Ltd to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye Ltd was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Furthermore, as described in the BPA Code of Practice under paragraph 21.1:

“You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.”

Additionally, expanding from point 1 above, Section 18.3 of the BPA Code of Practice states that any “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

Considering the observations made in point 2 (inadequate and non-compliant signage) above, I argue that Parking Eye has failed to meet the minimum standards set out in sections 21.1 and 18.3 of the BPA Code of Practice. While the available sign advises that the “car park (is) monitored by ANPR systems”, it does not inform the motorist what it is using “the data captured by ANPR cameras” for, as required under Section 21.1 of the BPA Code of Practice nor is it therefore “easy to understand”, as required under Section 18.3 of the BPA Code of Practice.

I would also point out that on the pictures provided of the vehicle on the PCN that it is impossible to tell where the first picture was taken as it is pitch black in the photo on the PCN. The only legible thing you can see is the number plate. So this casts doubt on the actual time spent within the car park, if at all, because there are NO pictures showing the car actually in THIS car park boundary/having passed any signage at all. If photos are taken just outside the car park then it is perfectly feasible that the driver might have stopped there to try to read any entrance signs or look for a barrier or arrows on where to proceed. If so then the cameras are set in an unfair position and will be starting the clock at a time when the car should not be timed at all.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show any entrance signs and how they would appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. Lastly I put to the operator that as the site is not located on ‘relevant land’, the operator is unable to rely on PoFA 2012 in order to transfer liability to the hirer

Umkomaas

Does the reverse page of the PE Notice to Keeper (NtK) contain a paragraph about the Protection of Freedoms Act 2012, which commences 'You are notified under paragraph 9(2)(b) of Schedule 4 ..... '. And a further paragraph which commences ' You are warned that if, after 29 days from the date given ....'?

Jason.rangou

Umkomaas wrote: »

Does the reverse page of the PE Notice to Keeper (NtK) contain a paragraph about the Protection of Freedoms Act 2012, which commences 'You are notified under paragraph 9(2)(b) of Schedule 4 ..... '. And a further paragraph which commences ' You are warned that if, after 29 days from the date given ....'?

Good morning Umkomaas


I have looked and I cannot see that it says that anywhere on the PCN.

Umkomaas

Jason.rangou wrote: »

Good morning Umkomaas


I have looked and I cannot see that it says that anywhere on the PCN.

So PE are not able to pursue the registered keeper and are accepting that PoFA doesn't (can't) apply at this site - 'not relevant land'. You have a 'Golden Ticket'!

Make sure the identity of the driver isn't revealed in the POPLA appeal. If the RK was definitely not the driver and he/she has proof of being elsewhere than the car park, then attach that as evidence.

I think once PE see the 'No Keeper Liability' and 'No proof the individual they are pursuing was the driver', they will withdraw.

Jason.rangou

Umkomaas wrote: »

So PE are not able to pursue the registered keeper and are accepting that PoFA doesn't (can't) apply at this site - 'not relevant land'. You have a 'Golden Ticket'!

Make sure the identity of the driver isn't revealed in the POPLA appeal. If the RK was definitely not the driver and he/she has proof of being elsewhere than the car park, then attach that as evidence.

I think once PE see the 'No Keeper Liability' and 'No proof the individual they are pursuing was the driver', they will withdraw.

Many thanks Umkommaas - Hypothetically speaking what if that person other than myself may have been the RK driving? I am not saying it was I am just posing the question.

Umkomaas

Jason.rangou wrote: »

Many thanks Umkommaas - Hypothetically speaking what if that person other than myself may have been the RK driving? I am not saying it was I am just posing the question.

Only the driver or keeper can provide the PPC or POPLA with that information. So if they're hypothetically daft enough to do that, the appeal could be lost, and PE could sue in the county court for any unpaid charge. Hypothetically speaking .....!

Jason.rangou

Umkomaas wrote: »

Only the driver or keeper can provide the PPC or POPLA with that information. So if they're hypothetically daft enough to do that, the appeal could be lost, and PE could sue in the county court for any unpaid charge. Hypothetically speaking .....!

I don't expect that will happen



Before sombedy that myself proceeds can you advise if the above POPLA appeal letter is acceptable/still relevant to send?

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P.
for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the House of Commons recently

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41 recently.

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

Coupon-mad

Jason.rangou wrote: »

can you advise if the above POPLA appeal letter is acceptable/still relevant to send?

I would add another point near the start, maybe as #2, that the PCN is a non-POFA one, blah blah.

Search the forum for Golden Ticket non-POFA POPLA and look for a ParkingEye result where someone has already won, & copy their words about the PCN.

You can't lose a Golden Ticket POPLA appeal (unless you blab about who was driving during an appeal stage) but we like to throw lots at it!