ParkingEye PCN Lee Valley Ice Rink confusing 'free period'

Cyclemore24

Thanks for your reply Coupon-Mad. I'm trying to get wording for a POPLA appeal.

I've not got the exact words from the initial appeal to ParkingEye which was rejected, but I use the third person'we drove', so I continued in the same vein. If it makes more sense to change all my wording now to the impersonal I can do that.

Thank you for the point about the liablity admission. Of course! I'll remove that.

Cyclemore24

Reworded it would be:

The keeper has received and initially appealed the PCN for Alleged contravention of the parking rules. Whilst being the keeper of XXX there is no acknowledgment that the keeper was the driver, whilst being parked in order to use the Lee Valley Ice Centre with his family.  Parking enforcement at the Ice Centre is governed by the Lee Valley Byelaws. Parkingeye can’t hold the keeper liable because land on which parking enforcement is controlled by byelaws is excluded from the definition of ‘relevant land’ in the statute known as POFA. 

Byelaws online - https://www.leevalleypark.org.uk/byelaws

The LeeValley Ice Centre is named in Schedule 1 as one of the grounds to which the Byelaws apply generally by virtue of Byelaw 2.  As Byelaw 18 prohibits overnight parking in any such ground and Byelaw 57 imposes penalties for breaching any of the Byelaws, the Lee Valley Ice Centre is excluded from the definition of 'relevant land' in POFA. 

Which means that Parkingeye cannot hold a keeper liable for any parking contravention.

The relevant provision in POFA is paragraph 3:  here https://www.legislation.gov.uk/ukpga/2012/9/schedule/4.

3(1)In this Schedule “relevant land” means any land (including land above or below ground level) other than—

(a)a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);

(b)a parking place which is provided or controlled by a traffic authority;

(c)any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

(3)For the purposes of sub-paragraph (1)(c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.

(4)In sub-paragraph (3) “statutory provision” means any provision (apart from this Schedule) contained in—

(a)any Act (including a local or private Act), whenever passed; or

(b)any subordinate legislation, whenever made,and for this purpose “subordinate legislation” means an Order in Council or any order, regulations, byelaws or other legislative instrument. 

(B) Confusing signages and information are displayed by both Operator (LeeValley Ice rink) and ParkingEye regarding the Free Anytime Drop off/pick up (up to 20 mins) period.

The information provided on signages and online contravenes the Consumer Rights Act 2015 as being misleading and confusing. 

The occupants of the car used the initial 20 mins to establish that they unfortunately had a void transaction for the ice skating, and then came out to book parking which was then correctly 'used'.

• Confusion and lacking clarity given ParkingEye’s interpretation. This is true both when combining the sources of ‘advice’ as a potential user of the facility (Online LeeValley), and true when considering just the ParkingEye signage in the car park itself. 

• As a motorist Landowner/IceRink's own website advises motorists as to a free period of 20mins. This makes no mention of the ‘inclusion of free minutes’ in the longer payable park sessions. 

• The ParkingEye signage is confusing, densely worded, located high up on lamposts and lists the FREE period of 20 mins at the top of the sign.

• This is not designed to aid clear easy payment given the ‘clock’ starts the second the ANPR senses one. 

• There was full intention to adhere to the parking charges researched online before attending the rebuilt site. Hence the purchase of a parking fee to cover the time from the purchase of the parking ticket. 

• A parking ticket was bought once it had been established following the drop off that it was not possible to skate as expected, due to an online purchasing error. (only with valid skate-tickets is there free parking for 4 hours when a registration number is put into a terminal in the venue)

• Nearly 20 mins into the drop off period, having been picked up by APNR at 14:26 and having become spectators, the ‘paybyphone’ app was used as below. The car left at 15:43, which with 3 mins left on the parking paid session was reasonably assumed to be compliant. 

PICTURE

• Reasonably interpreted the 20 mins as a grace period allowing for drop off/pick up functions as the grace period normally given allowing for payment. A parking ticket was purchased on the paybyphone app to cover the rest of the time. The chargeable periods are listed - as is usual -in increasing hour blocks.
  

• It is confusing and contradictory for a free period to be part of a chargeable session. 

• Backdating chunks of parking time is not normal practice for consumers. 

• There is no clear way of knowing the exact time ParkingEye are constituting as the beginning of the parking.
  

• This doesn’t constitute reasonable signage; on the balance of probabilities, a motorist would believe the ‘paid for’ parking period began after the free 20 minute parking period.

• This is reinforced by the Consumer Rights Act 2015.

Consumer Rights Act 2015 (legislation.gov.uk)

69 Contract terms that may have different meanings

• (1)If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

(2)Subsection (1) does not apply to the construction of a term or a notice in proceedings on an application for an injunction or interdict under paragraph 3 of Schedule 3.

Coupon-mad

You don't need this bit:

(2)Subsection (1) does not apply to the construction of a term or a notice in proceedings on an application for an injunction or interdict under paragraph 3 of Schedule 3.

Cyclemore24

I'm extremely grateful to have your input, and that of others. Many thanks.

troublemaker22

@Coupon-mad is right (as usual). Don't say the driver is liable, especially if you want to rely on the driver's defences re signage, CRA etc as well as POFA.  Also, don't expect POPLA assessors to follow up links.  Download the byelaws and upload the resulting document as an attachment in support of the appeal as well as providing the URL. I also suggest saving the appeal itself as a document and uploading it rather than typing it into the online box, in which you write simply "See uploaded documents".

I suggest you start as follows:

I appeal as keeper.  I am not obliged to identify which of the occupants of the car was driving and I decline to do so.  The operator cannot transfer the liability (if any) of the driver to the keeper because the only legislation that enables such transfer, Schedule 4 to the Protection of Freedoms Act 2012 ('POFA'), does not apply to the Lee Valley Ice Centre because it is excluded from the definition of 'relevant land' in POFA.

Specifically, etc etc.... 

Then conclude the POFA section as follows:-

The assessor’s attention is respectfully drawn to the fact that POPLA has twice issued apologies for incorrect assessments where assessors have wrongly refused appeals by reason of their failure to understand the significance and meaning of the definition of ‘relevant land’ and specifically that POFA can never apply to land on which parking is subject to statutory control (POPLA references 4822223007 and 4823142005).

After the POFA section, if you want to assert the driver defences (which is why you must not say the driver is liable) start as follows:

In addition, the keeper is entitled to all defences open to the driver including the following.

Then write all your stuff about confusing signage, CRA etc.  After which write:

Furthermore, the operator has provided no evidence that it owns the land or had authority from the owner to issue and enforce parking charges at the relevant time and the appellant reserves the right to expand on this in light of any evidence or arguments put forward by the operator.

troublemaker22

Hopefully this works

troublemaker22

Here is the first map attached to that email 

troublemaker22

And here is the second map

troublemaker22

Above are the emails and maps received this evening from the Lee Valley Park Authority. Provided one or other of the maps includes the car park, you should be home and dry on POFA - unless you wrote something in your first appeal that identified the driver 

Cyclemore24

I apologise for the very late communication but complicated family life has got in the way in the interim. With your help I went back to the Lea Valley Centre again directly. I then uploaded to POPLA all of the suggested defence material as above - and was met with a 'Withdrawn Prior to Appeal' right at the point where I later pressed to track the application.

A thousand thanks for your assistance, and the forum, at a very stressful period.