Parking Eye PCN Welcome Break

VintageMagpie

This was what I sent to POPLA:

Dear Sir/Madam,

On DATE ParkingEye Ltd. issued a Parking Charge Notice 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, on the following grounds:

 

1) No Hirer/Keeper Liability

2) Driver not identified

3) Inadequate Signage

4) No Landowner Authority

 

 

1) No Hirer/Keeper Liability

The Notice to Hirer is not compliant with either the Protection of Freedoms Act 2012 or the BPA Code of Practice.

 

Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper or hirer but this right is strictly subjected to statutory conditions being met by the operator, without which the right to 'keeper or hirer liability' does not exist.

 

However, the creditor has not satisfied the conditions to transfer liability:

 

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.

 

The documents required are defined here:

Paragraph 13 (2)(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.

This requirement is also clearly stated in the BPA Code of Practice.

 

ParkingEye failed to send a copy of the required documentation, either with the original Parking Charge Notice or the subsequent reminder

2) Driver not identified

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

 

According to POFA 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.

 

There is no ‘reasonable presumption’ in law that the registered keeper or the hirer of a vehicle is the driver. Operators should never suggest anything of the sort. 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. Furthermore, 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. 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.

 

 

3) Inadequate Signage

POFA states regarding onsite signage:

 

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.

 

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.

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.

 

 

4) No Landowner authority

The creditor is put to strict proof of full compliance with the BPA Code of Practice (Paragraph 7).

 

7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.

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

As this operator does not have proprietary interest in the land, then I require that they produce strict proof of both compliance with all of the above requirements and of the contract terms with the actual landowner (not a lessee who has no more title than the operator).

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). No evidence has been supplied lawfully showing that ParkingEye is entitled to pursue these charges in their own right in the courts (which is a strict requirement within the BPA Code of Practice)
I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance, particularly points 7.3 b) and d).

This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers.

I require ParkingEye to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of BPA Code of Practice. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an ‘agreement’ with a non-landholder managing agent - otherwise there is no authority.

**********

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

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

Yours sincerely,

NAME

VintageMagpie

Hello everyone, it took a long time but I finally had the outcome of my POPLA appeal - and it was SUCCESSFUL! 
I can't thank you enough for your guidelines in how to fight back and the personal advice you gave me! @MistyZ @Coupon-mad @KeithP @Umkomaas @Fruitcake and @Redx
I hope you are all keeping well in these difficult times. Thank you again!

Umkomaas

Thank you so much for the feedback with news of your success. As this thread will disappear down the forum very quickly after comments cease, would you be terribly kind and post up the POPLA written decision into the POPLA Decisions Sticky (ANNOUNCEMENT), one of the 5 that remain at the top of the forum thread list, so that others who follow your path with PE can more easily access the details of your win. Also, again if you wouldn't mind, build some paragraphs into that awful POPLA standard wall of text. 

Well done on beating PE, the biggest of the parking jungle's 'Big Five', a fantastic scalp. 

VintageMagpie

Hi Umkomaas, I've already posted on the POPLA Decisions Sticky: Part 1 with my appeal letter (with paragraphs, you will be glad to hear) and part 2 the POPLA decision. 

Umkomaas

VintageMagpie said:

Hi Umkomaas, I've already posted on the POPLA Decisions Sticky: Part 1 with my appeal letter (with paragraphs, you will be glad to hear) and part 2 the POPLA decision. 

Super, I'd spotted this thread first and commented here before checking. Thank you so much. 

VintageMagpie

@KeithP Hi Keith, how do I post a link of this thread on the POPLA Decisions Sticky? Sorry, not very technology savvy.

Umkomaas

VintageMagpie said:

@KeithP Hi Keith, how do I post a link of this thread on the POPLA Decisions Sticky? Sorry, not very technology savvy,

Click on the url in the address bar at the top of the page, copy it (Ctrl C), then go to the Decisions sticky, click in the comment box, and paste (Ctrl V), then click on 'Post Comment'.