ParkingEye - check my homework

Todd_J_Bonzalez

Success - POPLA allowed appeal on grounds of operator not transferring liability to reg keeper as they didn't cite POFA. Determination posted below. Thanks again for the help and advice from the forum.


Hello all, thanks to the help of many people on here I've put together an appeal against an ANPR ticket from ParkingEye.

Anyone care to mark my homework before I submit to POPLA please? (Personal details/dates/attachments not included for obvious reasons).


This is an appeal against a ParkingEye parking charge notice sent to myself as registered keeper of the vehicle in question.

This is a 'pool' car. I was not the driver of the vehicle at the time of the parking event. I am not liable for this parking charge on the basis of the below points:

1) The Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 to pass on liability from driver to keeper.

Neither the original parking charge notice nor the reminder (see attachments) makes reference to the Protection of Freedoms Act 2012.

The operator has not shown that the individual who it is pursuing is in fact 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.

I am under no obligation to name the driver.

No evidence has been produced by ParkingEye to identify the driver.

It has been held by POPLA on numerous occasions, a charge cannot be enforced against a keeper without a POFA compliant NTK.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge.

The 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."

I believe there is no right in law to pursue unpaid parking charges from a keeper where an operator has not transferred liability from the driver.

This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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) 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 a nd 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 un-redacted, 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, defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’.

Regarding Section 7.3 of the BPA Code of Practice I require evidence of 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 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.''
If such is provided, it must signed by the landowner (as per BPA Code of Practice 22.16b). If it is not, then it is not a valid witness statement according to the Code of Practice.

2) ii) - lack of planning permission

As you will see from the attachments, (Preston City Council documents; planning application, delegated report, decision notice), retrospective planning permission was granted originally in 2013 for the operation, signage and other car park furniture and an application was made for renewal of permission on 1/2/16.

The application from ParkingEye asked for consent until 1/2/21, but this was not granted.

A conditional renewal was granted for two years, from 29/3/16. Permission for the operation of this car park, signage etc expired on 1/2/18.

The parking event occurred on 25/1/19. It is my case ParkingEye is operating this car park without the necessary authorisation of Preston City Council.

ParkingEye has no legal standing to attempt to recover unpaid parking charges on a piece of land they have no authority to be running a car parking business from.

There is a common law principle “ex dolo malo non oritur actio” which means that a court or tribunal should not lend its aid to a man who has committed an immoral or illegal act.

In this case, if the parking company has not legally erected signage, then then should not be able to profit from it.

Given the above I ask you to uphold this appeal and dismiss the charge.

I should add, as a further observation, the signage in this badly maintained car park is wholly inadequate.

The contract is not displayed on the parking machines but on a pole some feet away and on another sign at the top of the entry ramp.

Neither are prominent, clear or legible given the small print and the distance between a motorist and the small print of the signage.

The signage is unreadable from a normal standing position - too high on the pole which has ANPR cameras on top (the sign is 2.1 metres, almost 7 feet, up the pole) and too low on the sign at the top of the entry ramp.

None of the signage is illuminated.

They clearly contravene the Consumer Rights Act 2015: http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted
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
(i) if it is expressed in plain and intelligible language and it is legible.
It would be impossible to actually read the parking contract without either crouching down or the benefit of step-ladders.

For all the reasons detailed above, I ask the parking charge appeal be upheld.

Coupon-mad

If it's a Golden Ticket with no POFA on the back, you will win as long as you are an individual appellant (not a company, which needs another hoop to jump through).

D_P_Dance

Complain to your MP. On 18th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

Until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Umkomaas

I was not the driver of the vehicle at the time of the parking event.

If this thread is linked to your previous thread in February, then you need to be making some urgent edits to that original thread, because that thread seems to suggest otherwise.

A danger of opening new threads for every step in one single case.

Todd_J_Bonzalez

more kisses xxxxxxx....

Otherwise, do you think this looks OK?

KeithP

See what you have done Umkomaas?

Hint: have another look at the OP's older thread. :rotfl:

Umkomaas

KeithP wrote: »

See what you have done Umkomaas?

Hint: have another look at the OP's older thread. :rotfl:

!!!!!! :doh:

He must love me - look at all those kisses! :rotfl:

Crazy frog stuff!

Todd_J_Bonzalez

Thanks for your help with this.
So, I submitted the appeal and it was rejected by ParkingEye natch' and it's gone to Popla re the original post on this thread.

Below is all the relevant bits of ParkingEye's response. Any contributions gratefully received.

Rules and Conditions
This site is a Paid Parking car park as clearly stated on the signage (enclosed). We have included a signage plan showing that there are signs situated at the entrance, exit and throughout the car park displaying the terms and conditions of the site.
The facility to pay by phone is also available at this site on the provision of the full, correct vehicle registration and payment card details.

Evidence G
System generated print out showing that the motorist’s vehicle registration number does not appear in our systems on the date of the event.
Please find enclosed a witness statement signed on behalf of the landowner showing that on the date of the parking event ParkingEye had authority to issue and pursue a Parking Charge to this vehicle
Authority ParkingEye can confirm that the above site is on private land, is not council owned and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent).
It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract.

Further Information
Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012.

As such, the appellant’s comments regarding the Parking Charge Notice being issued incorrectly are
not relevant in the case.

As you are aware, ParkingEye monitor Lawson Street (Upper), Preston, by the use of ANPR cameras and any motorist wishing to make use of the site must adhere to the terms and conditions displayed on the signage in situ. A parking contract is formed when the motorist enters the site, considers the terms and conditions on the signage, and chooses to remain. A Parking Charge will thereafter be issued should the terms and conditions of this parking contract be breached and it is our position that a motorist is bound by such a contract provided the terms were sufficiently brought to their attention.
It is ParkingEye’s position that the signage in place on site at this location is sufficient for this purpose and that sight of the signs on site, even if their presence was a purported planning breach, would result in the motorist concluding that parking was subject to certain conditions. Motorists would also be placed on notice that breaching the same would reasonably result in enforcement action and ParkingEye contend that the terms of any such enforcement action are clear.
ParkingEye ensures that all its signage is clear, ample, and in keeping with the British Parking Association (BPA) regulations.
The signage at this site demonstrates adequate colour contrast between the text and the backgrounds advised in the BPA Code of Practice, you will note the colour contrast at this site is black text on white background.
As the images show, the vehicle did not have its headlights on when entering the car park. We contend that there was clearly enough daylight for the motorist to be confident driving without the use of headlights, and therefore the signage would have been fully visible. (Please see Section F).

NB the 'contract' between PE and the landowner is a one side, 10 point piece of paper (don't know how to paste it onto here), which doesn't look like a valid contract to me, but I'm not a lawyer as you can probably tell...
I do know that the firm that holds the lease to charge motorists is a subsidiary of another firm ie the landowner. Should I also ask for the contract between the landowner and the leasee?

Coupon-mad

None of the above matters except one point.

I would be tempted to simply put this in POPLA's comments box:

Dear POPLA,
My comments on the evidence are restricted to the winning point, to make this one easy. This is a 'pool' car. I was not the driver of the vehicle at the time of the parking event.

Here is the silver bullet in ParkingEye's admissions in their evidence pack:

''Please be advised, this Parking Charge was not issued under the Protection of Freedoms Act 2012''.

I look forward to you confirming that I've won and cost ParkingEye a POPLA fee.

love & kisses,

Todd J Bonzalez

Todd_J_Bonzalez

Many thanks for those who contributed to this. I think you call this on the forum a 'golden ticket' case. Makes me wonder why operators ever issue tickets without reference to POFA, but hey ho...

POPLA determination.

The assessor has considered the evidence provided by both parties and has determined that the appeal be Allowed 
The reasons for the assessor's determination are as follows:
Assessor summary of operator's case:
 In this case the operator has issued a Parking Charge Notice (PCN) of £100 for either not purchasing the appropriate parking period or remaining for longer than permitted. 
Assessor summary of appellant's case:
 The appellant states they are not liable for the charge as they are the registered keeper and the operator has failed to comply with the Protection of Freedoms Act (POFA) 2012 and has not sufficiently evidenced that it is able to pursue them as the driver of the vehicle. The appellant states that the operator does not have authority to issue and pursue the PCN. They also advise they do not believe the operator has planning permission to keep the signage of the site erected, they have also stated the quality and illumination of the signage is poor. They advise the operator is in contravention of the Consumer rights Act 2015 as the signage is impossible to read.

To support the appeal, they have provided a copy of the original PCN reminder notice received from the operator, and several planning permission documents from the Preston City council. 
Assessor summary of reasons:
 POPLAs remit is to assess whether a PCN has been issued correctly. To do so we consider the benefit and utility gained from the use of the site and whether the motorist entered into a contract with the operator. The operator must show what terms and conditions applied to the parking period and how the motorist was made aware of the terms. Once this has been established it passes to the appellant to show any circumstance or inaccuracy which would prove the charge was issued incorrectly.

In this case the operator has issued a PCN of £100 for either not purchasing the appropriate parking period or remaining for longer than permitted.

The appellant confirms they were not the driver of the vehicle.

The appellant states they are not liable for the charge as they are the registered keeper and the operator has failed to comply with the Protection of Freedoms Act (POFA) 2012 and has not sufficiently evidenced that it is able to pursue them as the driver of the vehicle. The appellant states that the operator does not have authority to issue and pursue the PCN. They also advise they do not believe the operator has planning permission to keep the signage of the site erected, they have also stated the quality and illumination of the signage is poor. They advise the operator is in contravention of the Consumer rights Act 2015 as the signage is impossible to read.

To support the appeal, they have provided a copy of the original PCN reminder notice received from the operator, and several planning permission documents from the Preston City council.

The operator has provided transaction logs and automatic number plate recognition images which show the vehicle remained at the site without authorisation on 25 January 2019 between 09:28 and 15:58. The terms and conditions of the site are:

“All day £4.00… Please enter full correct vehicle registration… Failure to comply with the terms and conditions will result in a Parking Charge of £100…”

Within the case file the operator has stated that the PCN was not issued under the requirements of POFA 2012, however it has not shown that the appellant was the driver of the vehicle at the time of the contravention. The original PCN does not refer to POFA 2012 or provide the required information to inform the appellant that liability can be transferred to them as the registered keeper if the driver does not make payment.

For this reason, I find the PCN was issued incorrectly and allow the appeal. 
Kind regards

Umkomaas

Makes me wonder why operators ever issue tickets without reference to POFA, but hey ho...

Because half the !!!!!! still don't understand it - almost 7 years on. I don't include PE in that, and as long as you know what you're doing, their golden ticket is easy to spot.

But, unfortunately, 99% of the population have never heard of PoFA, let alone understand it, and PE issue golden tickets hoping their prey falls into that 99% cohort. Easy money!

Well done on being a member of the 1% club. :T