Euro Parking Services Fine Holyhead Road

Youarenotthedriver

Hi,

If possible I am in need of some urgent advice as managing a parking fine. It was issued to registered keeper for unauthorised parking , parking without an E-Permit.

Issue - the vehicle appears parked on public land not private. It is was parked on a dropped kerb outside of the property boundary not on the easement. Its a complex legal area but I have evidence to show it is a highway maintainable at public expense. EPS and IAS weren't having none of it.

I forfeited the discount opportunity as I believe in the claim. IAS rejected it. Surprise. They said the dropped kerb forms within a property boundary and how I conflated maintenance and ownership in a misconceived manner.

The current stage is that I have exhausted all appeals without naming driver and solely appealing as registered keeper.

I am torn as I feel this is a case that can be won on law but do not want to be going back and forth with debt recovery as its unreasonable and don't know if it will go all the way to court. I believe I have a strong case at court but just don't know any help please would be greatly appreciated I have 27 days before the LBC may come. They are unreasonable and won't cancel despite evidence but wanted an honest opinion. I have seen what people have written about IAS on the forum and honestly they used my evidence against me and interpreted it as to bias.

Youarenotthedriver

60 Holyhead Road.png

For illustration purpose this is the site. The EPS signage is located now on the silver railing. Not the the garden fence. EPS have got images to show the vehicle was parked only where the red vehicle is in the photo is shown. *This is an illustrative example.

My argument is that as it is a public footpath any fines issued should be by the council not a private company as it is not private land. Public footpaths form part of highway maintainable at public expense exempt from keeper liability

Youarenotthedriver

https://forums.moneysavingexpert.com/discussion/6659943/euro-parking-services-fine-holyhead-road

This was IAS' response

The Independent Appeals Service (IAS) has received a decision from the Independent Adjudicator regarding your recent appeal for the below PCN.

Parking Charge Number (PCN):

Vehicle Registration:

Date Issued:

Appeal Outcome: Dismissed

The Adjudicators comments are as follows:

"The Appellant should understand that the Adjudicator is not in a position to give legal advice to either of the parties, but they are entitled to seek their own independent legal advice. The Adjudicator's role is to consider whether or not the parking charge has a basis in law and was properly issued in the circumstances of each individual case. In all Appeals the Adjudicator is bound by the relevant law applicable at the time and is only able to consider legal challenges and not factual mistakes nor extenuating or mitigating circumstances. Throughout this appeal the Operator has had the opportunity to consider all points raised and could have conceded the appeal at any stage. The Adjudicator who deals with this Appeal is legally qualified and each case is dealt with according to their understanding of the law as it applies, and the legal principles involved. A decision by an Adjudicator is not legally binding on an Appellant who is entitled to seek their own legal advice if they so wish.

In all Appeals the burden of proof is the civil one whereby the party asserting a fact or submission has to establish that matter on the balance of probabilities. If the parking operator fails to establish that a Parking Charge Notice was properly issued in accordance with the law, then it is likely that an Appeal will be allowed. If the parking operator does establish that a Parking Charge Notice was properly and legally issued, then the burden shifts to the Appellant to establish that the notice was improperly or unlawfully issued and if the Appellant proves those matters on the balance of probabilities, then it is likely that the Appeal will be allowed. However, the Appeal will be dismissed if the Appellant fails to establish those matters on the balance of probabilities. The responsibility is at all times on the parties to provide the Adjudicator with the evidential basis upon which to make a decision.

The signs offer the terms for parking. By remaining parked on land managed by the Operator, having had notice of the terms, the driver agrees to them. In consideration for parking they agree to have a valid permit or pay the charge. In this way they have entered into a contract with the Operator and agreed to be bound by the advertised terms. The Adjudicator is satisfied that the sign is clear, easily observable and unequivocal.

The Appellant makes reference to the Fraud Act 2006. These representations are not relevant to this matter and form no part of this Adjudication.

The Appellant provides the title deeds and plans to the Land. The land is outlined in red on the title plan. It is of note that this includes the access to the land, which extends upto the road and includes the pavement. The Register also makes clear that the land owner has the following benefits to the land:

"Together With all rights and easements of a

party nature as at present used and enjoyed in

connection with the adjoining properties."

This would include access to the property from the road over the dropped pavement to access the land. This is why the plan outlines in red the land extending to the road. It encompasses the dropped pavement for access purposes.

The Appellant's assertion that a dropped kerb is

part of a highway maintainable at public expense by Birmingham City Council and therefore is not ‘relevant land' is misconceived.

The drop kerb is relevant land as it forms part of the title plan outlined in red and it is required to access the land. This is why the Register refers to ‘easements' and ‘quiet enjoyment'. The easement being the benefit to the right of way onto the property and it being necessary to have ‘quiet enjoyment'. You cannot have ‘quiet enjoyment' without access.

Further, the Appellant conflates maintenance with land ownership. You can own land with another party being responsible for it.

The images provided by both the Operator and the Appellant confirm that the Appellant's vehicle was parked on the dropped pavement, which forms part of the relevant land. The left front and rear wheels of the vehicle are on the dropped pavement at the time of the contravention. The right side wheels are on the road. The vehicle is positioned across the dropped pavement blocking access and exit.

The a sign is placed centrally on the gate which is in close proximity and within line of sight to the Appellant's vehicle. The sign clearly states parking is not permitted unless you have a valid permit.

When considering the above, points 1 and 2 (page 2), as well as grounds 1 and 2 (page 3-5) of the Appellant's representations fall away.

Finally, turning to the identity of the driver, POFA 2012 and case law permits the Operator to hold the registered keeper liable for an unpaid parking charge regardless as to whether they are the driver or not.

The Appellant has my sympathy but the Appeal is dismissed.

"

As your appeal has been dismissed, the Independent Adjudicator has found, upon the evidence provided, that the parking charge was lawfully incurred.

As this appeal has not been resolved in your favour, the IAS is unable to intervene further in this matter.

You should contact the operator within 28 days to make payment of the charge. 

Should you continue to contest the charge then you should consider obtaining independent legal advice.

Yours Sincerely,

The Independent Appeals Service

*please note the title plan and register did not reference quiet enjoyment. The easement relates to the pieces of tarmacked land between no 60 and no 58 Holyhead Road

Youarenotthedriver

@Fruitcake @Coupon-mad - I know you guys usually give good advice but would be grateful for any constructive help.

Coupon-mad

Yep just ignore EPS and wait for the LBC from Gladstones. This is a nothing stage.

IAS rejected it.

Please could you also post that joke decision in my IAS Decisions thread?

Youarenotthedriver

@Coupon-mad Thank you.

I just wanted to run a clarification point by you.

If you are parked on a highway maintainable at public expense as an exemption to relevant land, does that make the issuing of a pcn non-pofa compliant?

Coupon-mad

Yes it means POFA cannot apply.

Youarenotthedriver

https://forums.moneysavingexpert.com/discussion/comment/81928293#Comment_81928293

Thank you.Does that also mean the driver, cannot be held liable also because there is no contract formed with a private land operator if your not parked on public land?

Coupon-mad

Depends if a judge agrees. Sit tight.

This is appalling from the IAS:

"Finally, turning to the identity of the driver, POFA 2012 and case law permits the Operator to hold the registered keeper liable for an unpaid parking charge regardless as to whether they are the driver or not."

No such case law.

And EPS NTKs are usually non-POFA compliant.

Youarenotthedriver

https://forums.moneysavingexpert.com/discussion/comment/81929043#Comment_81929043

Thank you. If you were parked on a kerb and its maintainable at public expense I know thats an exemption of relevant land for the keeper. In the case of the driver, how can be still be deemed liable if it is a public highway that doesnt form part of relevant land?

Coupon-mad

Like I said, you'd have to evidence that it's not a private road.

A judge would look at evidence such as Council maps or emails confirming that they own or patrol that road/kerb.