Parkingeye - Ocean Terminal Short Stay Car Park Southampton

FrozenFishfingers

Hi folks, ParkingEye have responded to my POPLA appeal, unfortunately have chosen to contest it and have now submitted their evidence pack.

I'm conscious that I am limited to 1000 words in my response so have tried to focus on the relevant areas and have ordered my points in line with ParkingEye's evidence.

I have drafted the following response, please could you let me know your thoughts:

1.       The times recorded on the Parking Charge Notice are not indicative of the time spent parked.

 

ParkingEye have provided photographic evidence of the vehicle entering and leaving the site.  This does not accurately reflect the time spent occupying a parking bay but includes time spent entering, driving around and driving to the area where the driver was instructed to park by ABP officials and time spent exiting the car park. 

 

ParkingEye have failed to provide any evidence that the total amount of time spent stopped (parked) within the car park exceeded 2 hours.

 

2.       Authority

 

ParkingEye’s evidence states ‘it follows that a lawful contract between ourselves and the motorist will be enforceable by us as a party to that contract’

ParkingEye has failed to show that the individual who it is pursuing is in fact the driver who was liable for the charge and no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

3.       Grace Periods

 

ParkingEye acknowledge that parking operators ‘must provide motorists a consideration period’ and state that this must be a minimum of 5 minutes upon entering the car park and a minimum of 10 minutes at the end of a parking event.

 

It should be noted, as documented in my appeal, that these periods are a MINIMUM and, in any case, ParkingEye have not explained how these periods have been applied to the alleged overstay.

 

4.       Relevant Land

 

ParkingEye acknowledge that the land in question is subject to Bye Laws but have failed to evidence that Ocean Terminal Short Stay is ‘relevant land’.  Their statement that areas covered by Bye Laws are capable of being relevant land is at odds with the decision reached by POPLA assessor Steve Macallan on 29/09/2016, Verification Code: 6062356150

 

ParkingEye’s evidence refers to ‘Town Quay Short Stay’ as being relevant land, please note that whilst Town Quay Short Stay is subject to the Byelaws referenced, the alleged overstay occured at ‘Ocean Terminal Short Stay’, a different car park to the Town Quay Short Stay which ParkingEye claim is relevant land.

 

As the area is not relevant land, Keepers liability under PoFA cannot apply.

 

Further, ParkingEye included a copy of the Bye Laws and I wish to draw your attention to the following:

 

37.   No person shall:

 

a)      except with the permission of ABP, deposit or place on any part of the dock estate any goods or park any vehicle so as to obstruct any road, railway, building, mooring place, plant, machinery or apparatus or the access thereto;

 

Or

 

b)      without lawful authority, use, work, move, or tamper with any plant, machinery, equipment or apparatus at the dock estate.

 

As per my appeal, this clearly states that an individual may park with permission of ABP regardless of obstruction.

 

5.       Contracts / Letters of Authority

 

ParkingEye have once again failed to provide an unredacted copy of their contract with the Landowner and instead provided a ‘witness statement’.  The witness statement is redacted making it impossible to identify the alleged signatory, therefore making this evidence worthless.

 

Even if identification of the alleged signatory was possible there is still no proof that the alleged signatory has ever seen the landowner contract nor that they are employed by the Landowner. Such a statement would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise (BPA:CoP) to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

 

As ParkingEye are not the owners of this land they cannot form a contract with the driver. ParkingEye has failed to provide to provide evidence of a full un-redacted copy of their contract with the landowner which allows them to form such a contract.

 

The contract evidence supplied is worthless, as it cannot be scrutinised for BPA:CoP compliance and  a witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives ParkingEye the legal standing to levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849, Scunthrope County Court, 16th May 2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, ParkingEye have breached the BPA:CoP section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable.

 

Should a basic contract be produced mentioning parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer.

 

6.       Inbound, Outbound Correspondence and Car Park Signage

 

ParkingEye have provided photographic evidence of the signage on site, however none of these demonstrate the signage at the time of the alleged overstay. 

 

Instead the photographs are variously dated:

 

13/05/2014

13/05/2014

09/06/2015

09/06/2015

12/04/2022

11/05/2022

26/04/2023

26/04/2023

 

Given the significant period that elapsed between these photographs being taken and the alleged overstay taking place I do not consider these suitable evidence of the signage that was in place on [DATE].

 

The ‘Car Park Signage Layout Plan’ also appears to be an outdated document, produced prior to signage being placed in the car park and is not evidence of the signage on [DATE], for example it states ‘Entrance Sign to be installed’. 

 

This evidence is insufficient to show that signage was adequate when viewed from where the car was parked or how their signs appeared on that date, at that time, from the angle of the driver's perspective when entering the car park.

Coupon-mad

Surely you only need to point to 'no keeper liability'?  Or was the driver admitted by mistake?

FrozenFishfingers

Coupon-mad said:

Surely you only need to point to 'no keeper liability'?  Or was the driver admitted by mistake?

Nothing has been admitted.  I wasn't sure how much detail to go into on my response to the ParkingEye evidence pack - would it be safer to simply state that there is no keeper liability due to the relevant land point rather than trying to address each of the points I initally drafted?

Coupon-mad

Short and succinct. Don't restate the appeal.

FrozenFishfingers

Thanks, makes sense! I'll redraft my response this evening.

FrozenFishfingers

Hi everyone, I have re-drafted my response and simply focussed on the lack of keeper liability.

Is the following sufficient or should I expand further on any points? 

ParkingEye’s evidence does not show that I, as the individual they are pursuing, was the driver who may have been potentially liable for the charge.

There is nothing within the evidence pack that demonstrates that I personally did not comply with terms in place on the land, nor does the evidence pack show that I am personally liable for the parking charge.

Further, the evidence submitted by ParkingEye has failed to establish that keeper liability applies in this case.

 

ParkingEye have acknowledged that the land where the alleged overstay occurred is subject to Bye Laws, however ParkingEye have not demonstrated that this is ‘relevant land’ and therefore keeper’s liability under PoFA does not apply.

Coupon-mad

I'd just say:

ParkingEye have cheerfully admitted it's a non-PoFA NTK, perhaps because they hope that I don't know what that means.

But I do and I am sure POPLA know this too, especially given the fact that a Port is subject to byelaws and is not 'relevant land':

The keeper appellant can't be held liable. This PCN was not properly given or pursued, in the absence of any evidence of the driver.

FrozenFishfingers

Great stuff. Thanks, really appreciate it!

FrozenFishfingers

Hi everyone, thought I would update this thread with some positive news.  I received an outcome from POPLA today and they have found in my favour...although not for the reasons I was expecting!

The assessor noted that ParkingEye's ANPR signage was not compliant with the BPA Code of Practice and made a decision solely on that.

I have added the appeal outcome below in case the detail is useful to anyone else in future cases:

When assessing an appeal, the burden of proof begins with the operator to evidence that the PCN has been issued correctly. The British Parking Association (BPA) sets the rules by which parking operators must abide by. The BPA Code of Practice, paragraph 22.1 states: “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” 

Within its case file, the parking operator has provided photos of the signs. Whilst the signs show a camera logo and state that the site is monitored by ANPR, I cannot see that they show what the ANPR data will be used for. On some of the signs, there is small print at the bottom, which may have more information about what ANPR data will be used for. As the print is so small, I cannot read this to determine whether this is the case. As such I cannot conclude that the signs comply with the Code by making motorists aware what ANPR data will be used for. The appellant has raised other grounds in their appeal, but as I am allowing the appeal, it is not necessary for me to address these.

Huge thanks to Coupon-mad, Umkomaas and Keith P for your help in the thread!