Southampton Town Quay - POPLA stage

Coupon-mad

Yes, you are clearly copying from an older example and would obviously have to change it to the newer 2020 BPA Code, if using the same argument but quoting the rules as they stand now.

DizzyR

Umkomaas said:

I've not received a 'golden ticket' NTK

Does the reverse side of the Notice to Keeper have a paragraph headed 'Protection of Freedoms Act 2012'?

Yes, hence not a golden ticket, if I've understood correctly

DizzyR

OK, first draft of my appeal. Coupon I have sent you a PM ref a question I have. 

I am the registered keeper of Vehicle ******** and I wish to appeal a recent parking charge from ParkingEye whilst at Town Quays Short Stay CarPark, Southampton.

After finding signage, digesting and understanding the car park’s terms and conditions the vehicle was parked in the Free 15minute waiting zone, used for pick up / drop off for Red Funnel Red Jet service passengers. A combination of taking time to understand the terms and conditions to park, the ferry service being behind schedule and hold ups in the car park on exiting resulted in the vehicle leaving the car park after 20minutes, as stated on the issued NTK.

I submit the points below to show that I am not liable for the parking charge:

In Summary:

1) The Speculative parking Invoice sent is not a genuine pre-estimate of loss.
2) No standing or authority to neither pursue charges nor form contracts with drivers
3) Flawed landowner contract
4) The signage was not compliant with the BPA Code of Practice
5) ANPR Accuracy and breach of the BPA Code of Practice
6) Southampton Town Quay car park has no keeper liability - due to byelaws prevailing. POPLA decision code 6060344057
7) Grace Period: BPA Code of Practice – non-compliance

Specifically:-

1) The Invoice sent is not a genuine pre-estimate of loss.
There was no damage nor obstruction caused so there can be no loss arising from the incident. ParkingEye notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event.

The car park at the time of the alleged breach, was less than half full and so it cannot be said that any impact would have been felt by the business in any case by other users not being able to park, either by ParkingEye or by other businesses in the area surrounding Town Quay.

This charge from ParkingEye as a third party business agent is an unenforceable penalty. In ParkingEye v Smith, Manchester County Court December 2011it was rules that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.


The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

I have no doubt that ParkingEye will respond with a response claiming to assert some ''commercial justification'' but I refute their arguments. In a decision about ParkingEye at the same location (Town Quay), POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of the car park management services is commercially justified.
''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''

2) ParkingEye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.
ef. ParkingEye v Sharma, Case No. 3QT62646
Parking Eye v Gardam, Case No.3QT60598

3) Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require ParkingEye to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam. (above)

If ParkingEye are able to 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other court cases due to well-publicised and serious date/signature/factual irregularities.

4) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance).

Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are high up on poles and impossible to read as driving past without taking one’s eyes off of the road for a significant period.

5) ANPR Accuracy and breach of the BPA Code of Practice 21.3
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

In addition I question the entire reliability of the system.
I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.
(Ref ParkingEye v Fox-Jones 08/11/2013)

6) Southampton Town Quay car park has no keeper liability - due to byelaws prevailing. Specifically ABP Town Quay car park not being "Relevant Land".
It is my understanding that ParkingEye are aware of this issue following POPLA decision code 6060344057.

7) Grace Period: BPA Code of Practice – non-compliance

13.1 If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’ with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.

13.2 If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.

13.2.a Vehicles are not permitted to park under the grace period in spaces designated to specific users for example Blue Badge holders. At all times vehicles must have appropriate and valid permit e.g Blue Badge on display for enforcement officer to inspect.

13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

The BPA Code of Practice (13.2) clearly states that you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances this grace period must be a minimum of 10 minutes.  The BPA Code of practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. 

It is therefore argued that the duration of visit in question (which ParkingEye claim was 20 minutes 00 seconds) does not take into consideration the minimum grace periods, given:

a) The lack of sufficient signage throughout the car park in question (non-compliance with BPA Code of Practice 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.

b) The lengthiness of ParkingEye Car Parks’ signage (in terms of word count) with a significant amount of text included in extremely tiny text at the bottom of the sign (see Figure 1).

All factors discussed above serve merely to increase the time taken to:

• Locate a sign containing the terms and conditions.

• Read the full terms and conditions.

• Decipher the confusing information being presented (one example being identifying which fees apply).

• Understand no ticket is required to use the 15 minutes waiting zone bay (This information is not found on the main tariff signage. This information is found on a sign at the entrance of the car park which wasn’t seen by the occupant of the vehicle on entering the car park due to there being several signs all in the same position making it impossible to read any of the information whilst driving. See Figure 2 for sign, see Figure 3 for location of sign).

• Return to and safely park the vehicle in the 15 minutes waiting zone bay.

c) ParkingEye have not taken into account BPA CoP 13.4 which states a minimum grace period of 10 minutes must be given to allow a vehicle to safely leave the car park.

I request that based on the above defence, my appeal is upheld and for POPLA to instruct ParkingEye to cancel the ‘PCN’.

Coupon-mad

The Office of Fair Trading hasn't existed for years and nor has no genuine pre-estimate of loss (kicked out by ParkingEye v Beavis).  They will eat you up for dinner if you try that at POPLA!

Also remove #5 "ANPR Accuracy and breach of the BPA Code of Practice" (old stuff!).

You asked me this:

Logic would say: should still get the 10mins grace period to leave the car park after the 15minutes?

Maybe, if the 15 minutes is shown as a free PARKING period and not 'total stay'.

#6 should be your first point, with proof of the existence of the byelaws.

Umkomaas

1) The Invoice sent is not a genuine pre-estimate of loss.
There was no damage nor obstruction caused so there can be no loss arising from the incident. ParkingEye notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event.

The car park at the time of the alleged breach, was less than half full and so it cannot be said that any impact would have been felt by the business in any case by other users not being able to park, either by ParkingEye or by other businesses in the area surrounding Town Quay.

This charge from ParkingEye as a third party business agent is an unenforceable penalty. In ParkingEye v Smith, Manchester County Court December 2011it was rules that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.


The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

This is just so old and out of date, most of it blown out of the water by The Supreme Court in ParkingEye v Beavis in 2015. References to cases from 2011 and 2013 have also quite likely to have been overtaken by Beavis. 

The NEWBIES FAQ Announcement, third post, has many ready to use template POPLA appeal points to use, none of which refer to 'No Genuine Pre-Estimate of Loss'. Please read through that post #3 and redraft.  

If byelaws apply at that car park - you must carefully check that out - then that becomes your major and first POPLA appeal point - no keeper liability under PoFA. The one thing that concerns me is that PE have included the PoFA warning paragraph on the reverse of their NtK. They are administratively efficient and are not prone to schoolboy errors. So check, check, check. 

DizzyR

Thank you all for taking the time to respond. Mind blown a little at the moment. I'll take another look at post #3, I'm not entirely sure I look at the right post when I think I'm reading post #3.

I did copy paste from an older appeal, that'll be my issue, it is what I found by using the search tool. Unlike you all it's very apparent I am not up to speed on what to use and not. I'll try to figure out that post #3 bit. 

I am concerned though as Umkomass mentions about the POFA paragraph, which is present on the NtK. Does this paragraph mean that PE are covered even if there are byelaws present? 

Below is an image showing where ABP Southampton port boundary is. The vehicle parked where the blue cross is, thus inside the port's boundary.

 

DizzyR

Coupon-mad said:

Maybe, if the 15 minutes is shown as a free PARKING period and not 'total stay'.

It depends how you interpret this sign. It mentions 'free stay period'. Is that a parking period or a total stay period?

Coupon-mad

We just mean the third post of the NEWBIES thread.  We weren't suggesting you do any searches.

DizzyR

OK, thank you. I think I understand it now. I can see headers and links taking me off to the required info.

Is the picture I posted proof of byelaws being present in the area I park? as in is that satisfactory evidence to submit?

KeithP

DizzyR said:

Is the picture I posted proof of byelaws being present in the area I park? as in is that satisfactory evidence to submit?

I can't see how that image helps.
It shows an area covered by byelaw 52(3), whatever that is, but that marked area is nowhere near where you parked.