Parking Eye PCN Welcome Break

VintageMagpie

Is it worthwhile also mentioning signage, landowner authority and that the ANPR system is neither reliable nor accurate?

KeithP

Yes, mention the first two. Forget about ANPR.

Any contract between the driver and the parking company will be based on the signs, so their inadequacy should be clearly pointed out. There is a near template signage point and landowner authority point in the third post of the NEWBIES thread.

Umkomaas

As the hirer/lessee I wish to refute these charges and have this PCN cancelled, based on non-compliance with the Protection of Freedoms Act 2012 (POFA) Schedule 4, on the following grounds:

But for a Scotland resident, POPLA requires the driver to be identified. PoFA is totally irrelevant - so why are you referencing that as some kind of defence in your appeal. I read what CM said, but where are you reflecting that in your appeal. To me this is becoming extremely complicated.

MistyZ

The OP is using an English address Umkomaas.

Umkomaas

MistyZ said:

The OP is using an English address Umkomaas.

I realise @MistyZ, but how's that being conveyed to POPLA in an online appeal?  I don't see anything in the appeal to make that clear. Have I missed something?

And even then, I've no confidence that the assessor will spot it, or understand it. Don't forget, we're much more ahead of the game than any of the other players (from whichever side) in play.

VintageMagpie

Hi guys, that was just a draft, I will send a finalized appeal soon.

Fruitcake

Don't send anything until the regulars have "approved" your draft.

Fruitcake

You referred to the NTK in your point 3 of your draft appeal, but this was sent to the hire company. Do you have a copy of it, otherwise how do you know if it arrived in time as per the requirements of para 9 of the PoFA?

VintageMagpie

Hi Fruitcake, you're right. I don't a copy of the NTK that was sent to the hire company, I will delete that point.

VintageMagpie

So, after many hours and a headache (not joking), here is the final draft:

Dear Sir/Madam,

On DATE 2020 ParkingEye Ltd. issued a parking charge to myself (as hirer/lessee of the vehicle) highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “remaining at the car park longer than the permitted free stay”.

As the hirer/lessee I wish to refute these charges and have this PCN cancelled. I understand the Protection of Freedoms Act 2012 (POFA) Schedule 4 does not apply to residentes in Scotland but nonethless I wish to expose ParkingEye’s failings and non-compliance, as follows:

 

• Paragraph 3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by- (a)the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b)where no such requirements apply, the display of one or more notices which- (i)specify the sum as the charge for unauthorised parking; and (ii)are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

 

The signs in the aforementioned 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.
Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment of the signage. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site is NOT sufficient to bring the parking charge to the attention of the motorist.

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.

So for this appeal, I put ParkingEye 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 how the entrance signs 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.

 

Furthermore, there is no evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice (Paragraph 7).
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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge, cancellation rights and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do and when/where. 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 authorised on the material date, 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).

 

 

• Paragraph 5 (1)The first condition is that the creditor- (a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but (b)is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

 

ParkingEye has not shown that the individual they are pursuing is in fact the driver who may have been potentially liable for the charge.

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.

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. The burden of proof rests with ParkingEye 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. Therefore, no lawful right exists to pursue unpaid parking charges from myself as hirer of the vehicle, where an operator cannot transfer the liability for the charge using POFA.

 

 

• Paragraph 14 (2)The conditions are that- (a)the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragragh 13(2) and the notice to Keeper.

 

ParkingEye failed to send a copy of the required documentation, neither with the original parking charge notice or the subsequent reminder,: (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement.

I have contested this with ParkingEye with regards to their PCN reference REFERENCE, but they have written to me (dated DATE) to say I have been unsuccessful and provided POPLA reference REFERENCE.

I respectfully request that this parking charge notice appeal be allowed and await your decision.

Yours sincerely

NAME