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Euro Car Parks - Pay and Display Wolverhampton, NTK Not paying - 15 mins looking for a space no parking
Rifty
post Tue, 18 Sep 2018 - 13:44
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A colleague, the RK, received a NTK from Euro Car Parks for Cornhill, Wolverhampton - its a pay and display with payment machine and ANPR.

The driver entered, found no suitable space, waited a while to see if anyone would come back to the car park and vacate a space, and when no-one did, they left. 15 minutes between the inbound photo and the outbound photo. The car park is a dirt-track open space mainly used for whole-day commuters. The driver did not switch the engine off or leave the car; no-one was dropped off or boarded, the car was never in a parking space - although with a dirt surface they are not exactly well marked.

NTK within time, all POFA conditions appear to be met.

The RK intends to appeal on the basis that no parking took place, so (a) no contract arose - they couldn't offer what they did not have and (b) if no parking event took place, Schedule 4 of POFA isn't applicable.

Is this a viable defence? The BPA CoP doesn't actually define a grace period for this circumstance, just says it must be "reasonable". Does anyone know what other cases have indicated is "reasonable" for entering and trying to find a space before leaving?

Wolverhampton is 100 miles from the RK's or the driver's or my location, and Google Street view doesn't let us get close enough to the signs to read them.
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post Tue, 18 Sep 2018 - 13:44
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Rifty
post Mon, 24 Sep 2018 - 14:26
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Does anyone have a view on whether this is actually considered "parking" or not? Is there any case law that covers this?
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kommando
post Mon, 24 Sep 2018 - 14:32
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Read

http://forums.pepipoo.com/index.php?showtopic=120906
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Jlc
post Mon, 24 Sep 2018 - 14:33
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QUOTE (Rifty @ Mon, 24 Sep 2018 - 15:26) *
Does anyone have a view on whether this is actually considered "parking" or not? Is there any case law that covers this?

Read here.

ECP are not litigious (here) - I would simply state that the driver could not accept the contract (because of lack of spaces etc.) and rejected the contract on offer and left. 15 minutes is definitely on the longer side but not unreasonably so.

They will of course reject this and issue a POPLA code. Unless there's a default win at POPLA then I wouldn't bother - they'll only rubberstamp that the charge was 'correctly issued' - and not that it's actually legally payable.

Then ignore unless they do issue a letter before claim or claim.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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ostell
post Mon, 24 Sep 2018 - 14:43
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There was no contract in place as the offer of parking could not be fulfilled ECP
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Rifty
post Mon, 24 Sep 2018 - 14:58
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That "3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach" seems to cover it well.

My colleague is sending the following reply:

1. Thank you for your letter of [date] titled Notice to Keeper, under reference [pcn no]

2. I am the registered keeper of vehicle registration number [VRM].

3. On [date] about [time] the vehicle was driven into the car park. There were no suitable spaces available in the car park.

4. Whilst on the site the vehicle was

a. not parked,
b. the engine remained running,
c. the car was not left in a parking space,
d. the driver did not leave the vehicle,
e. nobody was dropped off and
f. nobody boarded the vehicle.

The time on site was spent waiting for a suitable space to become available, examining the instructions on your signs and attempting to understand the terms of parking. The driver chose not to wait any longer and not to be bound by your offer and left the site, less than 15 minutes later.


5. Any contract with the driver commences at the point that the driver purchases a paid period of parking, being unequivocal evidence of the formation of a contract. Otherwise if the driver parks the vehicle and leaves the vehicle in a parking space with the intention of avoiding payment. No such conditions occurred.

6. No contract could have existed between you and the driver of the vehicle, because there were no suitable, available parking spaces. A fundamental element of the formation of a contract is the offer of a product or service. You cannot offer the driver something which you do not have.

7. I note that you are members of the British Parking Association and have agreed to abide by their Code of Practice. Paragraph B6.2 of that Code of Practice states:
“If you provide parking facilities to the general public for a fee, your system must allow drivers who have not paid the fee to leave a site within a reasonable period that accommodates conditions and environments specific to that parking site. This grace period should be sufficient to enable motorists to leave without having their vehicle registration mark processed for a parking charge.”

8. Although the Code of Practice does not actually specify a period of grace in those circumstances, I suggest that the signage at the site and the complexity of the layout and the detailed charges and terms on those signs is such that it is not unreasonable for less than 15 minutes to elapse between when the vehicle is photographed entering and leaving the site, for no parking event to have occurred.

9. I note that your letter is a “Notice to Keeper” under the terms of the Protection of Freedoms Act 2012, Schedule 4. I have examined this schedule, as published on the Government web site and the very first paragraph says that the Schedule applies in the following circumstances: “This Schedule applies where—(a)the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. As no parking actually took place, this Schedule cannot possibly apply to your dealings with me, the Registered Keeper.
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Jlc
post Mon, 24 Sep 2018 - 15:05
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They'll still reject any appeal - but it's all about going through the motions. (there's no money in accepting appeals)

This post has been edited by Jlc: Mon, 24 Sep 2018 - 15:05


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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Churchmouse
post Tue, 25 Sep 2018 - 09:55
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QUOTE (Rifty @ Mon, 24 Sep 2018 - 15:58) *
The time on site was spent waiting for a suitable space to become available, examining the instructions on your signs and attempting to understand the terms of parking. The driver chose not to wait any longer and not to be bound by your offer and left the site, less than 15 minutes later.

Really? The signs were fully read and understood without the driver exiting the vehicle? Is that even possible? How big was the lettering?!?

QUOTE (Rifty @ Mon, 24 Sep 2018 - 15:58) *
5. Any contract with the driver commences at the point that the driver purchases a paid period of parking, being unequivocal evidence of the formation of a contract. Otherwise if the driver parks the vehicle and leaves the vehicle in a parking space with the intention of avoiding payment. No such conditions occurred.

Well, the PPC would argue that the contract is formed well before any actual payment, as they want to cover people reading the signs and deciding to stay--and not pay. The courts generally agree that the contract is formed prior to actual payment, and they do not require "unequivocal" evidence in order to do so (just more likely than not). So your statement about the point of contract formation is solely your opinion, and you're the only one holding that opinion, so what's the point of stating it?

QUOTE (Rifty @ Mon, 24 Sep 2018 - 15:58) *
6. No contract could have existed between you and the driver of the vehicle, because there were no suitable, available parking spaces. A fundamental element of the formation of a contract is the offer of a product or service. You cannot offer the driver something which you do not have.

I think the lack of parking spaces is more of a "frustration of contract" issue than a "no contract" issue. But here, I think the stronger argument is that there was no contract in the first place, given that the lack of parking spaces prevented the driver from being in any position to park, examine the signs and mentally agree to the offer of parking. However, as an alternative, frustration of contract should be included in case the court doesn't accept the lack of contract argument.

--Churchmouse
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Rifty
post Tue, 25 Sep 2018 - 11:50
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I am told that some of the lettering was huge saying something like £18 for a day. Most of the rest was quite small. The driver was only intending to be there for 2 hrs or so, and it was clear the pricing and the usual clientele were all-day parkers. The price per hour was exorbitant. The driver had no cash, and was looking for a Ringo-type payment, but couldn't see if that was possible.

I am sure that the PPC will say FO, so lets wait for the POPLA code and see what we can do then.

There is no-one in Wolverhampton fancies taking a few photos for us, is there?

Yep, thought so. Worth a try anyway! biggrin.gif
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Rifty
post Thu, 8 Nov 2018 - 13:22
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They have rejected the appeal and issued a POPLA code. Deadline for submission of the appeal is 15th November. (colleague was overseas on holiday)

In their rejection letter they say the following (with emphasis is bold text)

"Whether you left the vehicle or not is irrelevant as you were using the car parks facilities"

Ignoring the fact that they are assuming the keeper is the driver, it seems that they tacitly accept that the vehicle was not parked.

The following is the text of my colleague's appeal to POPLA. I would be grateful for any constructive comments.

==============

1. I am the registered keeper of vehicle registration number XX 99 XXX.
2. This appeal is against the issue of Parking Charge Notice number XXXXXXXXX
3. The appeal is based upon the following grounds:
a. There is no evidence that any parking took place. The claimant apparently accepts this is the case, as they say in their letter [copy attached] to me that I am liable to pay the charge as “you were using the car parks facilities” (sic). I am being charged for using facilities, not for parking. The claimant is on the one hand writing to me as the Keeper and then refers to me as if I were the driver.
b. The claimant does not know the identity of the driver and is relying upon the provisions of the Protection of Freedoms Act 2012, Schedule 4 to claim against me, the registered keeper. This Schedule is not applicable in this case as no parking took place.
c. The claimant has failed to comply with the Code of Practice for members of the British Parking Association governing the application of periods of grace for entry and exit of its car parks.
d. The signs in the car park are confusing, insufficient and are not comparable to the signs deemed adequate in the ParkingEye Ltd v Beavis case.

4. On 4th September, 2018 about 3.40pm the vehicle was driven into the car park. There were no suitable spaces available in the car park.

5. Whilst on the site the vehicle was

a. not parked,
b. the engine remained running,
c. the car was not left in a parking space,
d. the driver did not leave the vehicle,
e. nobody was dropped off and
f. nobody boarded the vehicle.

The driver’s time on site was spent waiting for a suitable space to become available and trying to understand the signs and the terms of parking. The driver chose not to wait any longer and left the site, less than 15 minutes later.


6. It is suggested that any contract with the driver commences at the point that the driver
(a) purchases a paid period of parking - or
(b) if the driver parks the vehicle and leaves the vehicle in a parking space
a. without paying or
b. with the intention of avoiding payment.
No such conditions occurred.

7. No contract could have existed between the claimant and the driver of the vehicle, because there were no suitable, available parking spaces. A fundamental element of the formation of a contract is the offer of a product or service. The claimant cannot offer the driver something - i.e. a parking space, which the claimant does not have in its power to offer.

8. The claimant is a full member of the British Parking Association and has agreed to abide by their Code of Practice. Paragraph B6.2 of that Code of Practice states:
“If you provide parking facilities to the general public for a fee, your system must allow drivers who have not paid the fee to leave a site within a reasonable period that accommodates conditions and environments specific to that parking site. This grace period should be sufficient to enable motorists to leave without having their vehicle registration mark processed for a parking charge.”

9. Although the Code of Practice does not actually specify a period of grace in those circumstances, I suggest that the signage at the site and the complexity of the layout and the detailed charges and terms on those signs is such that it is not unreasonable for less than 15 minutes to elapse between when the vehicle is photographed entering and leaving the site, for no parking event to have occurred – particularly when the site has no suitable parking spaces available for use, and the car park's un-paved surface does not support clear markings as to which area is, or is not, a proper parking space.

10. The claimant’s letter says that it is a “Notice to Keeper” under the terms of the Protection of Freedoms Act 2012, Schedule 4. I have examined this schedule, as published on the Government web site and the very first paragraph says that the Schedule applies in the following circumstances: “This Schedule applies where— (a )the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”.

The Collins English Dictionary defines “parking” as “the action of moving a vehicle into a place in a car park or by the side of the road where it can be left”. There were no such places available in this car park at that time. The vehicle was not “left” as it could not be left. As no parking actually took place, this Schedule cannot possibly apply to the claimant’s dealings with me, the Registered Keeper.

11. The courts approved the sign in the ParkingEye vs Beavis case. Below is a photograph of the sign in the Beavis case.

[Beavis sign]

One can see that the terms of parking and the parking charge are simple, large, bold and unambiguous.

The following is the photograph of the sign at the car park in question supplied by the claimant.

As can be seen – there are 12 different tariffs, 18 lines of “small print” terms and conditions, 6 lines of red-on-yellow “micro-print” terms and conditions, multiple methods of payment and instructions on how to pay, and no stand-out, obvious statement of the Parking Charge for failure to comply.

The claimants own sign uses the phrase “park”. Nowhere on their sign does the claimant state that simply being present upon the land constitutes “using the facilities” and thus requires payment.

It is not unreasonable for the driver to spend less than 15 minutes onsite between the vehicle being photographed entering and being photographed leaving when there is no space to park in, and the signs explaining the tariffs and the rules are so complex.

===================




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