Joining as Parking Eye appeal declined - WON

[choice1]

Hi to all. I'm joining as I need advice on a POPLA appeal and will post a thread explaining the position. Any advice will be most gratefully received!

[choice1]

Southampton Leisureworld PCN

Vehicle parked in the car park at Leisureworld on 31 Oct arriving at 17:42. Parking is free after 18:00. Parking is also free if visiting the Odeon cinema or other establishments but you have to get a ticket from a machine in the cinema. This was not realised and it was very dark in the car park, so notices were also not seen. Registered keeper received a PCN from Parking Eye (PE). Credit card statement showing purchase of tickets and Odeon cinema tickets were submitted in an appeal to PE. Appeal was rejected and a POPLA reference provided. Is it enough grounds to just state the above and provide the evidence to POPLA or is a full legal jargon appeal required using previous cases as an example/boilerplate?

[mystery1]

Re: Joining as Parking Eye appeal declined

Has the driver been identified ? Is it pay and display or free ? The land owner/retailer management complained to ?

M1

[choice1]

Re: Joining as Parking Eye appeal declined

Driver has not been identified, Its pay and display, complained to Ask Italian restaurant, driver ate there but paid cash and didn't keep receipt. They said they would contact PE and get it thrown out, but obviously didn't or failed. I'm going to Odeon cinema tomorrow to complain. Do I have sufficient grounds with the oDeon ticket and proof of purchase ?

[mystery1]

Re: Joining as Parking Eye appeal declined

Driver has not been identified, Its pay and display, complained to Ask Italian restaurant, driver ate there but paid cash and didn't keep receipt. They said they would contact PE and get it thrown out, but obviously didn't or failed. I'm going to Odeon cinema tomorrow to complain. Do I have sufficient grounds with the oDeon ticket and proof of purchase ?

At popla ? No.

With Odeon, maybe.

Can you post the pcn and appeals (suitably sanitised ?

I hope you went to tripadvisor and added comments about the eatery.

M1

[choice1]

Re: Joining as Parking Eye appeal declined

I have a .PNG file here how do I post it? Sorry not that savvy

[choice1]

Re: Joining as Parking Eye appeal declined

Getting tired didn't notice the note on where to email to on your post. Will send to admin@legalbeagles.info

[mystery1]

Re: Joining as Parking Eye appeal declined

Getting tired didn't notice the note on where to email to on your post. Will send to admin@legalbeagles.info

[MENTION=6]Amethyst[/MENTION] should get it and will post when online, no doubt

M1

[choice1]

Re: Joining as Parking Eye appeal declined

For completeness the appeal details were as follows: "I attach a copy of the ticket for Odeon Cinema, Leisureworld on 31.10.15 and a copy of the card statement showing online purchase of the tickets. A meal was taken at Ask Italian, Leisureworld and they will be contacting you with details. I have kept proof of submission of this appeal and look forward to your reply".

An attachment was also sent which I have emailed to admin.

[Amethyst]

Re: Joining as Parking Eye appeal declined

Hi choice1

I have received your email, the parking notice is attached, unfortunately I can't open the appeal document as I'm not sure what format it is in, seems to be xxxx.page - maybe you could try printing to a PDF file ( using something like CUTEPDF )- or doing screen shots and saving as img files ?

[choice1]

Re: Joining as Parking Eye appeal declined

Hi choice1

I have received your email, the parking notice is attached, unfortunately I can't open the appeal document as I'm not sure what format it is in, seems to be xxxx.page - maybe you could try printing to a PDF file ( using something like CUTEPDF )- or doing screen shots and saving as img files ?

Hi AmethystI will copy and paste it here ........

13/11/2015


I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.


I believe that the signs were not seen/are ambiguous and the terms unclear to drivers before they park.


There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.


I attach a copy of the ticket for the Odeon Cinema, Leisureworld on 31.10.2015 and a copy of the card statement showing the online purchase of the tickets. A meal was also taken at Ask italian, Leisureworld and they will be contacting you with details.


I have kept proof of submission of this appeal and look forward to your reply.

[mystery1]

Re: Joining as Parking Eye appeal declined

http://www.parkingcowboys.co.uk/popla-code-checker/

When is it due ?

M1

[choice1]

Re: Joining as Parking Eye appeal declined

Date of rejection from PE 30/11/2015
14 days from this date for discount e.g. 13/12/2015 - If I appeal or exceed £100 instead of £60

The real problem I have is that I am going to leave the country on Jan 3 2016 and won't be back till May. I have no idea how long a POPLA appeal will take and there will be nobody to reply to written correspondence.

[mystery1]

Re: Joining as Parking Eye appeal declined

Popla is online so no worries there.

I'd leave it until just before xmas, so we can get some results, then give me a shout to help with popla.

M1

[choice1]

Re: Joining as Parking Eye appeal declined

I have now utilised resources to assemble an appeal:

Dear Sir/Madam,


RE: POPLA Parking Charge Notice (PCN):
Vehicle Reg:
Date of Issue:
Location:
Company in question: ParkingEye


I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:


I am the registered keeper of the vehicle, a respectful, law abiding, mature member of society. I would have expected that:

1. documentary evidence of a visit to the Odeon cinema together with proof of payment via a credit card statement sent to Parking Eye (a copy is attached)
2. a conversation with the management of Ask Italian which is also on the premises who assured me they would explain to Parking Eye and get the charge cancelled

would be sufficient to resolve this unfortunate situation. As the Parking Eye appeal has been rejected I have been forced to take this route in defence.


In Summary

1. The Speculative parking Invoice sent is not a genuine pre-estimate of loss.
2. No standing or authority to either pursue charges or form contracts with drivers.
3. Flawed landowner contract
4. The signage was not compliant with the BPA Code of Practice
5. ANPR Accuracy and breach of the BPA Code of Practice
6. Southampton Leisure World car park has no keeper liability due to bye-laws prevailing. (POPLA decision code 6060344057)

Specifically:-


Point 1.
The Invoice sent is not a genuine pre-estimate of loss. There was no damage nor obstruction caused so there can be no loss arising from the incident. ParkingEye notices allege ‘breach of terms/failure to comply’ and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. The car park at the time of the alleged breach, had available parking spaces so it cannot be said that any impact would have been felt by the business in any case by other users not being able to park, either by ParkingEye or by other businesses in the area surrounding Leisure World. This charge from ParkingEye as a third party business agent is an unenforceable penalty. In ParkingEye v Smith, Manchester County Court December 2011 it was ruled that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. The Office of Fair Trading has stated to the BPA Ltd that a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event. I have no doubt that ParkingEye will respond claiming to assert some ”commercial justification” but I refute their arguments. In a decision about a ParkingEye PCN, POPLA Assessor Marina Kapour did not accept ParkingEye’s generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of the car park management services is commercially justified. ”The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.”


Point 2.
ParkingEye do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers. ParkingEye v Sharma, Case No. 3QT62646 ParkingEye v Gardam, Case No.3QT60598


Point 3.
Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require ParkingEye to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam (above). If ParkingEye are able to ‘witness statement’ in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities.


Point 3.
The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between ParkingEye and the driver. I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. In this case it was very dark and the signage was not noticed


Point 4.
ANPR Accuracy and breach of the BPA Code of Practice 21.3 This 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 say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code. In addition I question the entire reliability of the system. I require that ParkingEye 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. (Ref ParkingEye v Fox-Jones 08/11/2013)


Point 6.
Southampton Leisure World car park has no keeper liability – due to byelaws prevailing. The Operator has 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). No keeper liability is likely to apply at all, due to the Associated British Ports’ Southampton Harbour Byelaws 2003, which are attached (the byelaws), taking precedence and rendering this land outwith POFA and outwith ‘registered keeper liability’. I refer you to Schedule 4 section 3(1)(c) of the Protection of Freedoms Act, and byelaw 39. I also refer you to the map at page 20 of the byelaws, evidencing that Leisure World is an area to which the byelaws apply. Schedule 4 of the POFA 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 Leisure World and the surrounding port is covered by byelaws (statutory control) it clearly falls under 3(c) and is therefore exempt from POFA 2012. For The Operator 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 they contend otherwise then I expect them to provide POPLA with contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the byelaws cease to apply around Leisure World. The byelaws make it very clear that the penalties for parking on the land designated is solely in the gift of the Criminal Courts and as such the operator have no standing whatsoever to enforce civil parking charges or parking systems. Additionally, the byelaws also make clear that the Port of Southampton to which they apply includes Leisure World car park as shown on page 20. It is my understanding that ParkingEye are aware of this issue following POPLA decision code 6060344057.


Therefore I request that based on the above defence, my appeal is upheld and for POPLA to instruct ParkingEye to cancel the ‘PCN’.
Yours faithfully, (Register Keeper)