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  • FIRST POST
    • germantourist
    • By germantourist 18th Oct 19, 4:21 PM
    • 11Posts
    • 16Thanks
    germantourist
    ParkingEye and hired car, advice needed
    • #1
    • 18th Oct 19, 4:21 PM
    ParkingEye and hired car, advice needed 18th Oct 19 at 4:21 PM
    Thank you so much for running this forum, it already has been a great help. I am writing from Germany, and I am trying to follow the forum's rules and policies, but please excuse if I miss something (and also excuse any shortcomings in my English ).

    Unfortunately we used a parking which is managed by ParkingEye in August . It was a hire car, PE received our postal address (Germany) from the hire company and sent us the PCN/NTK afterwards.

    What happened was that we stayed in the car park for 48min, and the PCN template claims: "By either not purchasing the appropriate parking time or by remaining at the car park longer than permitted ... the Parking Charge is now payable to PE by the driver." After 8 weeks we do not have the ticket any more and cannot proof what was payed. Anyway, if the driver remembers correctly the parking was overloaded, so the cars would wait in queues for the next lot. This probably took 10+ min including getting the ticket.

    The history is as follows, it might be important:
    • Date of the Event: Aug 15
    • PCN to keeper (hire Company) issued: Aug 29
    • PCN to us (hirer): issued Sep 21
    • PCN received by us: Oct 08 (!)
    • Online Appeal (using fits-all template): some days later
    • Respective Information from hire company received: Oct 14
    • Status: Waiting for feedback, but we expect they will not yet cancel


    We used mainly the wording from the suggested template in the online appeal, so we did not admit driver name, and we did ask for the parking machine logs. In the online form, when submitting the appeal there is a box one has to tick with something in the sense "I will not bring any additional arguments".

    While waiting for the answer to the appeal, there are already some questions
    • The 14 days which PE needed to issue the PCN (to hire company) after the event, is this already a chance to get it canceled? Unfortunately we learned about this after the appeal because it was in the notification from the hire company which arrived after we did the appeal. The PCN cannot have reached the hire company within 14 days.
    • Given the letter runtime to Germany there is a chance that the response to the appeal arrives well after 28 days if they send by mail. Can we potentially make use of that?
    • We have not mentioned the traffic situation in the parking yet, as we wanted to wait for the logs. Will there be the possibility to bring new arguments at a later stage of the process?


    There is no real urgency in the moment. We will update this thread when we get a response, but if you have any comment before that would be great.
    Last edited by germantourist; 19-11-2019 at 5:37 PM.
Page 2
    • germantourist
    • By germantourist 9th Jan 20, 1:57 PM
    • 11 Posts
    • 16 Thanks
    germantourist
    Appeal was Unsuccessful
    We received the POPLA decision today. Against all expectations, the appeal was not successful .

    Our strongest arguments that the PCN is not compliant with POFA2012 (essential components missing from the PCN) was not honored, the assessor states "I have considered the PCN under the requirements of the Protection of Freedoms Act (PoFA) 2012. I have reviewed the PCN and I am satisfied it was issued in accordance with the requirements of PoFA 2012." The missing landowner contract was not commented at all, instead there is a long section whether the signage of the place is sufficient (which we never questioned).

    This is the complete feedback from the assessor:
    The appellant appealed as the registered keeper. They have not identified themselves as being the driver of the vehicle on the day of the parking event. As such, I have considered the PCN under the requirements of the Protection of Freedoms Act (PoFA) 2012. I have reviewed the PCN and I am satisfied it was issued in accordance with the requirements of PoFA 2012. I am therefore satisfied the operator is entitled to pursue the registered keeper for the PCN. The operator has provided photographic evidence of vehicle XXXXXXX entering the site at 13:12 and exiting at 14:01 totalling a stay of 48 minutes spent at site. When entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. The operator has provided photographic evidence of the signage in place in the car park, which states: “Parking Tariffs Apply … Tariffs … Up to 30 mins £0.50 … Up to 1 hour £1.00 … How to Pay ... At the payment machine at any time before exiting the car park - your full, correct vehicle registration will be required … Failure to comply with the terms & conditions will result in a Parking Charge of £100” The operator maintains a list of all payments made on the day in question. When searching this list, it shows the payment linked to the appellants vehicle registration covered 30 minutes only. The appellant explains that the PCN does not meet the requirements of PoFA 2012. However, as discussed above, I have reviewed the PCN and am satisfied the requirements of PoFA 2012 have been met. The appellant states there was no breach of terms and conditions. However, as discussed above, when entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. By purchasing 30 minutes of parking only but remaining for 48 minutes the appellant has breached the terms and conditions of the site. The appellant states the charge is unfair/prohibited. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must consider the minimum standards set out in Section 18 of the BPA Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” As stated, these are the minimum standards that could be expected of the parking operator when informing motorists of the terms and conditions at a particular site. In addition to this, I note that within the Protection of Freedoms Act 2012 it discusses the clarity that needs to be provided to make a motorist aware of the charge. Specifically, it requires that the driver is given “adequate notice” of the charge. The act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land. Even in circumstances where PoFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist. Therefore, having considered the decision of the Supreme Court decision, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence, the appellant exceeded time paid for, and therefore did not comply with the terms and conditions. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

    Any idea what went wrong? It would also be helpful for similar cases with rental cars to adapt the strategy. From our side, as the POPLA decision cannot be challenged, we are probably going to pay the fine now. Going to court does not seem to be appropriate.
    • Redx
    • By Redx 9th Jan 20, 2:31 PM
    • 26,776 Posts
    • 35,033 Thanks
    Redx
    It says you identified as the Registered Keeper , which you are not

    The hire or rental company is the Registered Keeper

    Most rental vehicle PCN.s fail because the hire docs plus Keeper/hirer details are rarely passed to the parking company. I cannot recall any where the hire docs were passed to the PPC

    Meaning that the PPC nearly always fail POFA

    Check your popla appeal to see what entity you appealed as , normally it's keeper as a hirer or as a lessee , definitely not as Registered Keeper

    If popla are saying you were the RK , email a complaint to John Gallagher as a procedural error because these assessors keep making POFA errors , timescales was the recent one , but hire docs and RK issues is yet another failure

    The strategy is correct , it's assessor training that is poor

    Ps , reading the thread it seems that Parking Eye were not pursuing it under POFA , so I have no idea why the assessor used POFA , which parking Eye seem to have failed anyway

    Plus it seems no landowner contract was filed , so another failure by the assessor

    Perhaps the assessor is new and is still reading Mr Men books ?
    Last edited by Redx; 09-01-2020 at 2:38 PM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • nosferatu1001
    • By nosferatu1001 9th Jan 20, 3:04 PM
    • 6,253 Posts
    • 8,277 Thanks
    nosferatu1001
    Indeed, thats a complaint
    - the PPC didnt try to use POFA so the assessor cannot give them something theyve never claimed
    - it cant have been compliant anyway, thanks to (presumably) another mistake by the assessor
    - and they didnt submit landowner contract anyway, so they must have failed

    At least three areas of complaint.
    • Coupon-mad
    • By Coupon-mad 9th Jan 20, 4:07 PM
    • 80,692 Posts
    • 95,221 Thanks
    Coupon-mad
    Any idea what went wrong?
    The Assessor didn't consider the landowner authority - was it in your POPLA appeal?

    From our side, as the POPLA decision cannot be challenged,
    It can, read Brucella's therad. He did. Others have done too and you describe it as a PROCEDURAL ERROR when emailing POPLA's complaints team.


    we are probably going to pay the fine now.
    A truly dumb plan. Sorry, don't do that.

    Read Brucella's thread and send an email complaint if you had as a appeal point, 'no landowner authority' in your POPLA appeal and the PPC failed to answer that with a contract or witness statement, then the POPLA Assessor has made a clear procedural error by failing to consider that point.

    He/she also failed to consider the Notice to Hirer rules abut enclosures, under the POFA para 13 and 14.
    Last edited by Coupon-mad; 09-01-2020 at 8:55 PM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • MistyZ
    • By MistyZ 9th Jan 20, 8:21 PM
    • 1,266 Posts
    • 2,662 Thanks
    MistyZ
    That's one of the worst POPLA decisions I've seen.

    Everything's wrong with it. It reads as if written by a parking company, there is very little attention given to the substance of your appeal and towards the end it just becomes a lecture.

    Absolutely no acknowledgement of the fact that the hire car documents outlined in the PoFA 13 were not passed to the hirer by ParkingEye - that clearly went over the assessor's head. Is there even any recognition that this involved a hire car?

    Obviously the lack of any evidence from P.E. re. their authority to operate was completely ignored.

    This assessor doesn't know what they're doing at all. A bit of incompetentence is commonplace, but this one takes the biscuit. And please tell me the report didn't come in one wall of text as it appears here ....

    This one has to be the subject of a strong complaint. There's such a disconnect from it and the appeal to which it allegedly relates that even the BPA must surely act on it.

    Brucella's paved the way, her post outlines who to write to and when ....
    Last edited by MistyZ; 09-01-2020 at 8:55 PM.
    • Umkomaas
    • By Umkomaas 9th Jan 20, 8:36 PM
    • 26,583 Posts
    • 43,669 Thanks
    Umkomaas
    And please tell me the report didn't come in one wall of text as it appears here ....
    I'm afraid they all do. How utterly cheap and unprofessional. And they still use the term 'Assessor rational' (sic).

    And no one seems to have ever spotted the spelling error - uneducated rabble! But it does pose a major management question - where is the oversight when such a minor spelling, but obvious error, is overlooked and when major errors in the understanding of the law are blindly supported, against the interests of the consumer.

    Wind this lot up! Pretty hopeless from top to bottom!
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask.
    Give a man a fish, and you feed him for a day;
    show him how to catch fish, and you feed him for a lifetime.
    • germantourist
    • By germantourist 10th Jan 20, 9:06 AM
    • 11 Posts
    • 16 Thanks
    germantourist
    Ok, I will be going to prepare the escalation step(s) following the Brucella case in which I will dive into over the weekend. To answer some of your questions:

    • Our initial appeal included arguments A to F (outlined in the appeal and repeated in the rebuttal):
      A) ParkingEye failed to comply with the strict requirements of POFA
      B) ParkingEye have not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
      C) ParkingEye has no standing or authority to pursue charges or to form contracts with drivers using this particular car park.
      D) The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v. Beavis.
      E) ParkingEye failed to provide information requested in the direct appeal
      F) There was no breach of the parking terms and conditions
    • From the POPLA response it seems the assessor is not aware that it was indeed a hire car
    • The is no formatting or structuring in the text (section named "Assessor supporting rational for decision", all came in a single paragraph.
    • Assessor was Ami Edwards, and she seems to be on board since some time, at least I found her being mentioned in this forum already 2-3 years ago.


    Next step will then be a formal complaint to POPLA claiming "Procedural Errors".
    • MistyZ
    • By MistyZ 10th Jan 20, 9:17 AM
    • 1,266 Posts
    • 2,662 Thanks
    MistyZ
    Ok, I will be going to prepare the escalation step(s) following the Brucella case in which I will dive into over the weekend. To answer some of your questions:
    Originally posted by germantourist
    Thank You!! I hope you get redress.

    Don't hold back when complaining. I know your tone will be polite, but emphasise just how incompetent the decision is e.g. 'absolutely no acknowledgement that the appeal involved a hire car' .... 'no reference whatsoever to ParkingEye's failure to produce a valid contract with the landowner' and so on.

    I'm not suggesting you use my words, just that every organisation involved in this industry seems to need to have completely obvious things underlined, emphasised, written in capitals and shouted from the rooftops.

    Edit: I searched for Ami Edwards. Found this decision from her in post 1,939 of the Newbies' thread, I suspect you've seen it already. There's therefore really no excuse for the failure to address P.E.'s lack of evidence re. landowner contract in your case:

    'The appellant states the operator does have the authority of the landowner to issue and pursue parking charge notices (PCN). Section 7 of the British Parking Association (BPA) code of practice requires operators to own the land or to have written authority from the landowner to operate on the land. As the operator has failed to provide any evidence in response to this ground of appeal, it has failed to prove that it has the required authority to operate on the land in question. I acknowledge that the appellant has raised other grounds for appeal, but as I have allowed the appeal on this basis, I have not considered them.'
    Last edited by MistyZ; 10-01-2020 at 9:50 AM.
    • Le_Kirk
    • By Le_Kirk 10th Jan 20, 10:05 AM
    • 8,009 Posts
    • 9,072 Thanks
    Le_Kirk
    And they still use the term 'Assessor rational' (sic).
    .....when clearly they are not! It just goes to prove that a lot of what they "write" is copy and paste. Amazing that the parking companies don't complain about this, as they seem to do about defences! If this simple error can go on for as long as it has it goes to show how "unfit for purpose" POPLA is or has become.
    • germantourist
    • By germantourist 14th Jan 20, 2:06 PM
    • 11 Posts
    • 16 Thanks
    germantourist
    Many thanks for all encouraging posts. I will address the complaint to the e-mail address POPLA is providing for complaints. In a first step I tried to reconstruct the original appeal from POPLA web-site in order to understand if there was any error in the input from my side, or documents not being uploaded, but this seems not to be possible due to the structure of the user interface. Due to limitations in the appeal text box I had written down the lodge of the case in a text document which I uploaded, and reading the answer it seems this document was not considered at all. However, the points A-F had been in the summary I entered in the text box and in the rebuttal, but I will attach the document again to the mail. The format of my letter is a little bit nicer than in the template below, but it should allow for proofreading. Any comment please let me know.

    If the complaint is not successful I am also considering complaining at BPA.

    Dear John Gallagher,
    Dear POPLA Complaint Officer,

    I am writing to you in reference to your recent decision in my case XX. After carefully reading the assessor's reasons I came to the conclusion that there is are obviously procedural errors in this decision.

    It is important to note that I had uploaded a PDF document “Complete Outline and Evidence” together with my appeal. In this document I have detailed all points, while in the appeal form of the PoPLA web interface I only entered a summary due to space and formatting limitations. From the assessor comment it seems that this uploaded document was not considered. So I am wondering whether the upload has worked correctly or if there was also a technical problem with the website. For your convenience I am attaching the PDF document again to this mail.

    In particular I am complaining about the following points:
    1. I am referred to as “Registered keeper” in the “Assessor rational” section. I am not sure how the assessor came to this conclusion, it was a hired car and I have made the appeal as “hirer” of the car, which was clearly stated in the appeal.
    2. I had listed in total six points why I believe the appeal must be approved. In the Assessor response there are points which are not referred to at all (2.a) or in an unsatisfying way leaving out important aspects (2.b):
      a. ParkingEye has no standing or authority to pursue charges or to form contracts with drivers using (originally point C): As this operator does not have proprietary interest in the land I required that they produce an unredacted copy of the contract with the landowner. ParkingEye completely failed to provide the landowner contract.
      b. ParkingEye failed to comply with the strict requirements of POFA (originally point A):
      The entire communication and information by ParkingEye is not compliant with the POFA requirements, especially for the following points:


      i. ParkingEye failed to refer to keeper liability in the first PCN (Notice to Keeper). There is no mentioning of Schedule 4 of the Protection of Freedoms Act 2012 in the first PCN/NTK. After receiving my (the car hirer) contact information, ParkingEye sent me another PCN (Notice to Hirer). Also from the PCN/NTH any reference to keeper/hirer liability is missing, Schedule 4 of the Protection of Freedoms Act 2012 is not mentioned in this notice either.

      ii. The PCN/NTH that we received, as if it was a Notice to Hirer, had no enclosures at all. This means it was not compliant with the POFA 2012 (specifically, para 14) and as hirer, I cannot be held liable. Paragraph 14(2) and (3) of POFA 2012 covers transferring liability to a hirer, and it says:
      (2) The conditions are that -
      (a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper; the documents mentioned under 13(2) are e.g.:

      ·
      a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;· a copy of the hire agreement and
      ·
      a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)).
      ParkingEye did not provide me with a copy of any of these documents.

      iii. ParkingEye failed to send the first PCN/NTK to the registered keeper (hire company) within 14 days. The parking event occurred on August 15, and the first PCN/NTK is dated August 29. Assuming a domestic letter run-time of two days, this PCN/NTK was delivered on September 02, which is 18 calendar days after the event.
    3. ParkingEye stated that the PCNs were not issued under PoFA (and as pointed out earlier they are obviously not compliant with PoFA regulations), but the assessor has considered them under PoFA regulations.
    Point 1 suggests that the assessor has not seen my complete input and the assessment was made under incorrect assumptions. The arguments under 2.a and 2.b have been part of my original appeal, I am not trying to bring in new aspects. However, they have not been considered in an adequate way. Therefore I am asking to review my case again due to procedural (and perhaps also technical) errors.

    Sincerely,
    • Le_Kirk
    • By Le_Kirk 14th Jan 20, 3:33 PM
    • 8,009 Posts
    • 9,072 Thanks
    Le_Kirk
    I am referred to as “Registered keeper” in the “Assessor rational” section
    Not your fault but the spelling used by POPLA is ALWAYS incorrect, it should be: -
    I am referred to as “Registered keeper” in the “Assessor rational rationale” section
    • germantourist
    • By germantourist 15th Jan 20, 10:09 AM
    • 11 Posts
    • 16 Thanks
    germantourist
    Thank you Le_Kirk for highlighting this. Now I understand also the other statements regarding spelling error.
    Last edited by germantourist; 15-01-2020 at 5:11 PM. Reason: early submit
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