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Should I pay PCN

edited 16 September 2016 at 1:04PM in Parking Tickets, Fines & Parking
41 replies 7.9K views
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  • Have linked thread in and below was the final appeal to POPLA with some information removed:

    POPLA Ref No.xxxxxxxx
    I am the registered keeper and I wish to appeal a recent parking charge from Parking Eye Ltd,. The charge is levied despite the driver not being identified.
    A member was merely dropped off to cancel a membership. Not being a driver themselves they knew nothing off the fact that car details needed to be supplied when entering the gym as there are no signs inside the entrance alerting people to this requirement.
    There may be signs at the boundaries but not all areas are well-signed as a car drives through the middle of the site, so unlike the findings regarding the Beavis case car park, the driver here was certainly not 'bound to' have seen the terms nor could be considered to have 'agreed' to a parking contract like Mr Beavis did. An unfair 'out of all proportion' charge for non-parking activity of merely dropping off, picking up and leaving within minutes is precisely the sort of charge that the Beavis case Judges made clear would fail the penalty rule which was 'plainly engaged'.
    1. The minimum grace period was not allowed by the operator:
    The vehicle entered the car park at 09:17 and left at 09:29
    British Parking Association Code of Practice 13.1 – 13.4 states:
    13 Grace periods
    13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without
    having their vehicle issued with a parking charge notice.
    13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still
    allow them a grace period to read your signs and leave before you take enforcement action.
    13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
    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.
    2. The vehicle was indeed authorised to be on the land legally as the below e-mail from the General Manager of DW Sports states:
    Hi xxxxxxx
    As per our conversation today I can confirm that your son xxxxx is a current member of the health club and was in the club on the day which you received your parking ticket. xxxxx was not informed by the staff on duty of the new parking system and so he didn't input his/your registration plate into the system.
    If you require any other information please feel free to email me directly.
    Kind Regards,
    General Manager
    Parking Eye Ltd. Were sent a copy of this e-mail but have obviously ignored it. The member had not been informed by staff of the new parking system, nor are there any signs at the entrance or inside the reception area. In fact, there is not even a facility to enter a vehicle registration inside the reception area as you have to actually enter the gym through a card activated turnstile.
    3. The operator makes much of Beavis case. They are well aware that the circumstances of the Beavis case were entirely different, essentially that case was the abuse of a free time limited public car park where signage could be used to create a contract.
    In this case, we have an authorised user using the car park appropriately, there has been no loss to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that a £100 (or £60 if paid promptly) fine is a conscionable amount to be charged whilst an authorised member visits the business to speak to a manager for 10 minutes.
    Therefore, in this case GPEOL should still apply and any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair.
    4. Insufficient signage.
    Parking Eye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park but their own images of the vehicle included on the PCN disprove this because no signage is visable in said images. The keeper made a special visit to the car park to ascertain the positioning and quality of the sign. They are positioned further inside the entrance and would only be visable to the driver if they happened to be driving a convertible with the roof down and quite clearly this is not the case in the images. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Also because of this visit it is noted that the sign is a forbidding one, so no contract can be made with the driver.
    5. No evidence of Landowner Authority
    The operator is put to strict proof of full compliance with the BPA Code of Practice
    As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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).
    Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.
    Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot
    be assumed to be the sum on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
    Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:
    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
    Also Parking Eye have provided no evidence that the ANPR system is reliable. The 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 require the Operator to 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. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed
    when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
    Parking Eye has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.
    Failure of Parking Eye to follow the BPA code of practice, particularly in contravention of clause 22.8 of the British Parking Associations code of practice too which Parking Eye must abide states that members of the BPA must “acknowledge or reply to the challenge within 14 days of receiving it. The initial appeal was lodged online on Parking Eye’s site on the 16/09/2016, yet Parking Eye did not respond until 10/10/16, when they rejected the initial appeal.
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