ParkingEye at Portishead Marina Quays

PGHarper wrote: »

Here is my first draft at a POPLA appeal. Lots of thanks to tlw_18 as her appeal was in an adjacent car park. I guess I will get a similar response from PE.

Any advice is welcome.

Dear POPLA Assessor,


No Keeper Liability - Bristol Bye Laws


The vehicle above was recorded entering the Portishead Quays Marina on the xxxxxxx by APNR.
I'm the registered keeper of the vehicle and I am appealing against the parking charge above. I believe I am not liable for the parking charge on the grounds stated below. I would graciously ask that all points are taken into consideration when making your judgement.

1. Inadequate signage/ No contract between driver and the creditor
2. No Keeper Liability - Bristol Bye Laws
3. No genuine pre-estimate of loss
4. No standing or authority to pursue charges nor form contracts with drivers
5. Inadequacy of ANPR camera
6. The car park signage failed notify the driver that ParkingEye intended to exercise its rights under POFA
7. ParkingEye Ltd.’s Notice to Keeper failed to meet the strict requirements of POFA


1. Inadequate signage/No contract between driver and the creditor

The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye Ltd and the driver. I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B.
Following the receipt of the charge, I as the registered owner have personally visited the site in question, and the signage at this car park especially at the entrance is inadequate. The signage advertises/announces the management company’s logo/banner, the facilities are listed including car parking. The signage however, is at a point where traffic is meeting and the drivers’ attention would be on vehicles approaching. At the physical entrance to the car park, there is no signage stating the contract or the method of charging customers. It is therefore possible for drivers to enter the car park without realising that it is a privately managed car park. (Please see attached photographic images for signage at the entrance of the car park)

Under Section B 18.2 Entrance signs of the BPA Code of Practice it states:

‘Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B.’

It therefore follows that due to inadequate & insufficient signage that the contract between the driver & the creditor has not been established.

2. No Keeper Liability - Bristol Bye Laws

Portishead Quays Marina fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled you to pursue this matter with myself (the registered keeper). ParkingEye Ltd have issued a defective Notice citing an Act which does not apply at this particular site, to attempt to claim an unenforceable charge from the keeper (myself).

Indeed, and as ParkingEye Ltd are already fully aware, no keeper liability can apply at all, due to the BRISTOL CITY DOCKS BYE-LAWS (2009)
which can be found at .bristol.gov.uk/documents/20182/33656/city-docks-byelaws.pdf/4848ef7d-139d-4ed5-9387-f3173a72e604 (the byelaws), taking precedence and rendering this land outwith POFA and outwith 'registered keeper liability'. I refer you to Part 1, section 3 which states that Portishead Pier Estate is an area to which the byelaws apply.

POFA 2012 is quite clear on this:

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.

As Portishead Quays Marina and the surrounding port is covered by bye-laws (statutory control) it clearly falls under 3(c) and is therefore exempt from POFA 2012.

For ParkingEye Ltd to claim in their standard letters that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Byelaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. If ParkingEye Ltd contend otherwise then I expect them forthwith to provide me with contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply around Portishead Quays Marina. If ParkingEye Ltd fails to supply this information I will ask Bristol City Council and Trading Standards to investigate your conduct and prosecute you.

The byelaws make it very clear (at Part V, paragraph 68) that the penalties for parking on the land designated is solely in the gift of the Criminal Courts and as such ParkingEye Ltd have no standing whatsoever to enforce civil parking charges or parking systems. Additionally, the byelaws also make utterly transparent that the Bristol City Docks bye laws to which they apply includes the Portishead Quays Marina area.

3. No genuine pre-estimate of loss

The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. ParkingEye Ltd must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so ParkingEye Ltd have no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6, which states that the charge “cannot be punitive or unreasonable”.

ParkingEye Ltd cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe ParkingEye Ltd are likely to be paid by their client - so any such payment income must be balanced within the breakdown ParkingEye Ltd supply and must be shown in the contract, which leads me to appeal point 4 below.

4. No standing or authority to pursue charges, nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye Ltd must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing or authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put ParkingEye Ltd to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between ParkingEye Ltd and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Parking Eye Ltd.

5. Inadequate accuracy of ANPR camera

ParkingEye Ltd is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require ParkingEye Ltd to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye Ltd was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

Furthermore, as described in the BPA Code of Practice under paragraph 21.1:

“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.”

Additionally, expanding from point 1 above, Section 18.3 of the BPA Code of Practice states that any “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

Considering the observations made in point 2 (inadequate and non-compliant signage) above, I argue that Parking Eye has failed to meet the minimum standards set out in sections 21.1 and 18.3 of the BPA Code of Practice. While the available sign advises that the “car park (is) monitored by ANPR systems”, it does not inform the motorist what it is using “the data captured by ANPR cameras” for, as required under Section 21.1 of the BPA Code of Practice nor is it therefore “easy to understand”, as required under Section 18.3 of the BPA Code of Practice.

I would also point out that on the pictures provided of the vehicle on the PCN that it is impossible to tell where the first picture was taken as it is pitch black in the photo on the PCN. The only legible thing you can see is the number plate. So this casts doubt on the actual time spent within the car park, if at all, because there are NO pictures showing the car actually in THIS car park boundary/having passed any signage at all. If photos are taken just outside the car park then it is perfectly feasible that the driver might have stopped there to try to read any entrance signs or look for a barrier or arrows on where to proceed. If so then the cameras are set in an unfair position and will be starting the clock at a time when the car should not be timed at all.


6. The car park signage failed notify the driver that ParkingEye Ltd intended to exercise its rights under POFA

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including;

Paragraph 68 (1): a trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

Paragraph 68 (2): a consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

Paragraph 69 (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.

Also, Paragraph 21.1 of the British Parking Association Ltd Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. This paragraph also instructs operators that signs at the car park must tell drivers that they are using this technology and what they will use the data captured by ANPR cameras for.

I have good reason to believe that the car park signs did not clearly advise the driver that ParkingEye Ltd intended to use the data captured by its ANPR cameras as a means to pursue the vehicle’s keeper under POFA for parking charges in the event that they remained unpaid by the driver.

The establishment of keeper liability under POFA is not automatic; it is conditional upon the operator a) choosing to exercise its right to use the provisions of POFA and b) then fully complying with the strict requirements of POFA.

In the absence of the car park signs giving a clear warning that ParkingEye Ltd intended to use POFA to claim keeper liability, the driver (in accordance with their rights under Paragraph 69 of the Consumer Protection Act 2015) was reasonably entitled to conclude that ParkingEye Ltd did not intend to use POFA to pursue keeper liability.

7. ParkingEye Ltd’s Notice to Keeper failed to meet the strict requirements of POFA

ParkingEye Ltd failed to deliver a Notice to Keeper that fully met all of POFA’s strict requirements, particularly Paragraph 9(2)(a) of Schedule 4. Contrary to the requirements of Paragraph 9(2)(a), the Notice to Keeper did not specify the period of parking to which the notice relates. The Notice to Keeper specified the times which ParkingEye Ltd alleged that the vehicle arrived and departed (as recorded by ANPR camera images). These times are clearly not the same as the times between which the vehicle was alleged to have been parked



This concludes my appeal and I respectfully request that my appeal be allowed.

Yours Faithfully,