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ZIPCAR PCN - Loading Bay (ZipCar Aware?)
ZipCarDriver
post Wed, 14 Feb 2018 - 22:39
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Hi,

I'm hoping you can help me out with some advice in relation to a PCN ZipCar received in relation to their car being parked in a Loading bay.

Date of Notice: 02/01/2018
Date Zipcar informed me they had been issued a NTO: 11/02/2018

Contravention Date & Time: 22/11/2017 09:03
Contravention: 25 - Parked in a loading bay or place during restricted hours without loading

The reason I had parked in this bay at the end of my reservation the day previous (21/11/2017 shortly after 22:00) was due to the CarClub assigned bay being occupied by another vehicle. At that time I contacted ZipCar by phone to obtain advice which I believed I had correctly followed. Once I had parked the vehicle I called them again to notify them of the exact location I had parked, which was directly next to another ZipCar close by parked in it's assigned bay. I ended my communication with Zipcar with them being informed of the location, and myself believing the car was parked properly. Of course, otherwise I would have found another alternative space!

Further to this the bay is not, at least in my opinion, very clearly marked, especially when it is dark and considering all other loading bays, except this one and one other of around 10 in total in the apartment complex, have different road markings / or laid with brick instead of tarmac to signify they are not a residents bay.

So far ZipCar deny that I informed them of where the vehicle was parked, which is an untruth, and I understand that the time period that ZipCar could appeal the NTO has now expired due to their delay/inaction. I would greatly appreciate any advice you can give for next steps.

Please find the NTO, photos I have taken of the location I had parked (taken yesterday), and my communications via email so far attached or below:

Pictures of location (approximately where the Royal Mail van is parked), the Car Club bay to the right is a ZipCar bay other than the one assigned to the car I had parked, which was parked correctly at the time:
https://ibb.co/mwXYmS
https://ibb.co/bBueRS
https://ibb.co/mME2fn
https://ibb.co/ee2YmS
https://ibb.co/iSr4t7

This is how all (but 1 other) loading bay's in the development (and zone) are differentiated from residents spaces. None of the loading spaces have letters on the road:
https://ibb.co/etxG6S


Emails:

From Zipcar - Sat, 10 Feb 2018
Dear [removed],

We have received a Penalty Charge Notice [PCN ID] on [vehicle registration]. Unfortunately, having consulted our records I am sorry to inform you that responsibility has been attributed to your account.

The charge was issued after your booking. Please log into your Zipcar Account and follow the link below to view a copy of the notice which has the full details of the charge. Your booking ran from Nov 21st, 2017, 6:30pm - 10pm. Members are still liable for PCN's that are issued after their booking, as a result of the vehicle being left parked incorrectly.

[LINK REMOVED]

We will pay the charge in five days and will add £130.00 and a £15.00 processing charge to your bill then. The processing charge covers the cost to us of dealing with the large volume of notices that we receive.

If you feel this Notice was issued incorrectly and would like to appeal it, please contact us by responding to this email within this window.

If we do not hear from you the PCN will be paid and settled by Zipcar and the associated charge applied to your account in 5 days time. So if you are satisfied that the PCN has been issued correctly no further action is required by you.

If you have any queries regarding this please do not hesitate to contact us by replying to this email.

Kind regards,

Zipcar Operations Support

From Me - Saturday 11 Feb 2018
Hi,

Thanks for getting in touch.

At the end of my reservation the allocated Car Club Parking bay was filled with a non-car club vehicle.

I followed instructions given by Zipcar to park in any other Newham Council parking bay, which I understood that I had.

Can this PCN be appealed on this basis?

Best,
[removed]


From ZipCar - Mon, 12 Feb 2018

Dear [removed],

Thank you for getting in touch regarding PCN [removed] on [Removed].

It is the member's responsibility to ensure that the vehicle is left parked legally both during and at the end of their booking. The vehicle must be left parked legally within the designated bay at the end of a booking regardless of where the vehicle is picked up from. If this is not possible for any reason the member must call Zipcar and follow the instructions of the operative they speak to.

Unfortunately it does sometimes happen that our bay may be inaccessible. We do however have a contingency procedure agreed with the local authority for each of our locations to make sure that the vehicle can still be left parked legally, as this is still the member's responsibility in these circumstances. With this particular location we are allowed to temporarily park in a residents, shared use, pr unrestricted bay within the borough in these circumstances provided that we contact the council and advise them of this.

It is therefore important that members call us whenever they are unable to park legally within the designated bay and make sure to follow the instructions of the operative that they speak to. In this instance I can see that you did call us and were advise on the above mentioned bays in which it would be safe to park our vehicle but unfortunately you did not call us to advise on the vehicles location and you had parked in a Loading bay as opposed to any of the bays in which it would have been safe to park.

Unfortunately because the vehicle was left parked illegally at the end of your booking, we cannot successfully appeal this PCN and it has been correctly attributed to your account. I'm afraid we will therefore need to pay and apply the associated charge.

I understand that this is a frustrating situation, but we need you to remember that PCNs are not issued by Zipcar, but by the local authority. We try to accommodate our members as best we can, but we, as a company need to recover the costs of these fines from the members responsible.

Kind Regards,

Zipcar Operations Support

From Me - Monday, 12 Feb 2018
Hi Zipcar,

Thanks for your email regarding PCN [removed] on VRM [removed].

You have claimed that I did not call ZipCar to inform you of where I had parked the vehicle at the end of my reservation, this is incorrect.

I initially called Zipcar from my contact number, [removed], at 22:08 on the number 03332409000 advising Zipcar that the designated bay was occupied by another vehicle. This duration of the call was 00:03:35. At this time I then followed the instructions given, as I understood them, and parked in another available Newham bay.

I then called again, as instructed on the previous call, from my contact number, [removed], at 22:14 on the number 03332409000 and fully explained the location I had parked the car. Stating several times this was directly behind/next to another ZipCar vehicle bay. I quoted the vehicle registration of the ZipCar, parked in its assigned bay, I had parked adjacent to. The advisor located the location and street upon which it was parked while I was on the call. To this effect, Zipcar was aware of the location I had parked the car. This call duration was 00:03:55.

At the time I parked the vehicle, and the time I made Zipcar aware of where the vehicle was parked, the vehicle I had parked was not parked illegally and was not subject to any restrictions until 9am the next day. As I had informed and agreed with a Zipcar advisor on the location of where I had parked the vehicle, I fail to understand why Zipcar is now claiming I liable for this charge.

Please check your records as it appears you have made an administration error with the handling of your calls and records.

Best,

[removed]

From ZipCar - Wed, 14 Feb 2018

Dear [removed],

Thank you for replying to my email regarding PCN [removed] on VRM [removed].

Please accept my apologies for my previous email in which I wrongly confirmed that you had not called us at the end of your reservation.

I have searched our records and I can confirm that you have in fact called and spoke to one of our operators. Unfortunately after reviewing the call I must advise that our agent advised you that since you were unable to park our vehicle in its dedicated car club bay you had to find a residents or unrestricted bay within the borough and give us a call with an exact location.

Unfortunately you parked our vehicle in a Loading bay or space during restricted hours without loading and did not call in with the exact location.

Because you did not follow our instructions and parked the vehicle illegally we were not able to assess the situation and act in accordance in order to avoid a PCN.

I am sorry to say that this PCN has been correctly added to your account and that have no valid grounds to send an appeal to the issuing authority.

We will therefore need to pay and add the associated charges to your account. As a good will gesture , I have waived the admin fee for you on this occasion. Please be aware that we will not be able to do this again in future however.

If you have any queries please do not hesitate to get in touch.

Kind Regards

Zipcar Operations Support

From Me - Wed, 14 Feb 2018
Hi Zipcar,

Thanks for confirming that another call did take place. However I must inform you that I did call and advised of the exact location once I had parked the vehicle.

I confirmed the location by giving the location I had parked the vehicle relative to another Zipcar parked in it's dedicated bay, which I had parked directly next to. This was discussed on the call with the advisor.

At the end of this call I was satisfied that I was correctly parked as advised and confirmed by the Zipcar Operator, after confirming the exact location I had parked with them.

On this basis I don't feel the PCN has been correctly added to my account, however, I would also note upon reviewing the location I parked again that the signage that this is a loading bay is likely inadequate and would recommend this PCN is appealed on this basis. The Loading Bay signage is confusing, poorly lit / not easily visible, there is no Loading Bay or differentiating markings on the road and all but one of the other loading bays in the East Village parking zone are brick laid to signify they are not residents parking, whereas the bay where the PCN was issued is not.

Please could you advise how I can assist you in submitting an appeal for this PCN?

Best,

[removed]

From Me - Wed, 14 Feb 2018

Hi Zipcar,

Without prejudice and further to my earlier email, there are further grounds upon which this PCN was not correctly issued by the Parking Officer.

The Observation Policy set out by Newham Council as detailed in the document linked here specifies that contravention 25 should have a observation time of 5 minutes before any PCN should be issued. As the loading bay is only restricted after 09:00 and the PCN was issued at 09:03 this is further grounds for appeal.

Best,

[removed]

Oops - Yes I realise now that that previous email isn't correct, as the Loading bay restriction starts at 8am, not 9am. Made a mess of that.

From Me - Wed, 14 Feb 2018

Hi Zipcar,

Apologies and without prejudice, after re-reviewing the details of the loading bay I can see the restriction starts at 8am and not 9am as I stated in my previous email.

Please dis-regard my previous email.

Best,

[removed]


###

Thanks in advance!

This post has been edited by ZipCarDriver: Wed, 14 Feb 2018 - 22:42
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post Wed, 14 Feb 2018 - 22:39
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stamfordman
post Wed, 14 Feb 2018 - 22:47
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We seem to be getting a run on Zip. Here's another where someone left it in a loading bay. As i said, I would be surprised if loading bays are in the contingency - did you confirm 'loading bay' with the Zip operator?

http://forums.pepipoo.com/index.php?showtopic=118657
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ZipCarDriver
post Wed, 14 Feb 2018 - 22:58
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I'd like to say yes I did, but from 2+ months ago I can't remember if I said it was a loading bay or not.

I remember saying it wasn't exactly clear. My feeling is I didn't see the loading bay sign and thought it was a residents bay. I do remember saying it wasn't clear to the operator, and explained as clearly as possible it's location to the operator at the time, relative to the other ZipCar. As far as it was explained to me the location was noted and everything was okay.
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4101
post Wed, 14 Feb 2018 - 23:01
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QUOTE (ZipCarDriver @ Wed, 14 Feb 2018 - 22:58) *
I'd like to say yes I did, but from 2+ months ago I can't remember if I said it was a loading bay or not.

I remember saying it wasn't exactly clear. My feeling is I didn't see the loading bay sign and thought it was a residents bay. I do remember saying it wasn't clear to the operator, and explained as clearly as possible it's location to the operator at the time, relative to the other ZipCar. As far as it was explained to me the location was noted and everything was okay.



ask for the audio of the call you made to ZC. You are responsible for reading traffic signs and road markings.
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stamfordman
post Wed, 14 Feb 2018 - 23:06
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I'm thinking they have poorly trained agents. If it were me I'd say please exit the car and look at the sign for the bay you are in.
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ZipCarDriver
post Wed, 14 Feb 2018 - 23:18
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I will ask for the audio of the call.

I'm not saying I'm not responsible to read the signs and markings, my issue is that I explained to their operator exactly where I had parked, that I wasn't sure what type of bay it was, and this was accepted by the operator as being okay thank you very much goodbye!

If I had been asked to read the sign to them, I probably wouldn't be here today! At the time they didn't clearly explain to me WHAT the difference between the bays are, and only they hold the knowledge on what's part of their agreement with the council.

Just to give further context: At the time it was pouring with rain, I had to find an alternative parking location at night when there is extremely limited on-street parking nearby, all due to another person wrongly parking in the car club bay (which is clearly marked). All the while feeling under pressure as I'd gone over my reservation time limit due to this - which I was later charged a late fee for too! (Got it re-imbursed after 2 phone calls). Yes I missed the sign. Understand all ^ this ^ doesn't help me.

This post has been edited by ZipCarDriver: Wed, 14 Feb 2018 - 23:20
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cp8759
post Wed, 14 Feb 2018 - 23:22
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IMO it is illegal for Zipcar to simply decide the PCN must be paid, there is a system of appeals set up by Parliament and Zipcar are purporting to transfer liability to you contractually while denying you your right of access to the relevant tribunal.

The only lawful routes for Zipcar to take are to either pay the PCN themselves (and not recover the amount from you), or transfer liability by appealing the Notice to Owner on ground D. The reasons why the approach taken by Zipcar is illegal is outlined here http://forums.pepipoo.com/index.php?showto...p;#entry1354748 (That thread relates to a similar issue in the terms and conditions of EuropCar, but it's the same issue). I accept hcandersen does not agree with me on this point but nothing that's been said on the topic so far has persuaded me that any court would uphold Zipcar's terms and conditions as lawful.

If it were me, I would email them something along the lines of this:


Dear Sir or Madam,

Zipcar has no authority to collect payment of PCNs on behalf of local authorities. The correct legal procedure in this scenario is for Zipcar to appeal the Penalty Charge on the ground that Zipcar is a hire firm, and supply the details of the person who hired the car (In this case that would be me). If you look on the Notice to Owner, you will see it quite clearly states on the second page under ground D:

"We are a hire firm, the vehicle was on hire at the material time and the hirer accepted liability in writing for any Penalty Charge Notice issued to the vehicle wile it was on hire. Tick box 'D' if the vehicle was on hire at the time of the contravention and the hirer signed a formal agreement accepting liability for parking charges. You must give the name and address of the hirer at the relevant time"

It is Zipcar's responsibility to appeal on this ground within the 28 day period provided, this is provided for in the Traffic Management Act 2004 and its subordinate regulations. Please note I will not accept any liability for Zipcar's failure to follow the correct procedure established by law, which must be followed to transfer liability. I also remind you that the legal process set out under the Traffic Management Act 2004 takes precedence over your terms and conditions.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
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4101
post Wed, 14 Feb 2018 - 23:26
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QUOTE (ZipCarDriver @ Wed, 14 Feb 2018 - 23:18) *
I will ask for the audio of the call.

I'm not saying I'm not responsible to read the signs and markings, my issue is that I explained to their operator exactly where I had parked, that I wasn't sure what type of bay it was, and this was accepted by the operator as being okay thank you very much goodbye!

If I had been asked to read the sign to them, I probably wouldn't be here today! At the time they didn't clearly explain to me WHAT the difference between the bays are, and only they hold the knowledge on what's part of their agreement with the council.

Just to give further context: At the time it was pouring with rain, I had to find an alternative parking location at night when there is extremely limited on-street parking nearby, all due to another person wrongly parking in the car club bay (which is clearly marked). All the while feeling under pressure as I'd gone over my reservation time limit due to this - which I was later charged a late fee for too! (Got it re-imbursed after 2 phone calls). Yes I missed the sign. Understand all ^ this ^ doesn't help me.



I cancelled my membership due to time pressure of being late. More trouble than it was worth. I am looking at easycarclub

anyway, they have to provide you with the audio, but they may charge you up to £10. thats the law.
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hcandersen
post Thu, 15 Feb 2018 - 09:13
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Let's deal with the contract issue regarding the OP's alleged breach.

Was the OP in breach?

Yes, absolutely.

Why?
Because they did not leave the vehicle in one of the locations specified in the contract these being the zipcar bay, a resident's or shared use bay etc.

It does not lie with the OP to decide unilaterally to park elsewhere which is exactly what they did. The OP is arguing a redundant point IMO. They argue that when they left the vehicle in a contractually-unapproved location it was not in contravention and by virtue of notifying Zipcar that the car was parked other than as required under the contract this changes the contractual provisions. In effect..hello Zipcar, I've left the car where it will be in contravention in *** hours, you'd better get your skates on....!

I do not accept this argument. By extension any Zipcar driver could decide to leave their vehicle wherever they chose and simply by telling Zipcar would absolve themselves of their contractual obligations!

So IMO the OP was in breach.

But it appears so are Zipcar. It is clearly their policy to offer hirers the option to have the liability transferred or be charged and IMO this would form an express or implied condition of their contract. They are therefore contractually required to offer this allowing the hirer the opportunity to choose.

So OP stop arguing the toss about the contravention, get back and tell them to transfer liability, it this is what you want.

But if what you're angling for is to not have the NTO transferred and to not pay a penny, then come clean about this because this affects advice.

This post has been edited by hcandersen: Thu, 15 Feb 2018 - 09:17
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cp8759
post Thu, 15 Feb 2018 - 09:42
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QUOTE (hcandersen @ Thu, 15 Feb 2018 - 09:13) *
So OP stop arguing the toss about the contravention, get back and tell them to transfer liability, it this is what you want.

The NTO is dated 2 January, the end of the 28 day period to transfer liability was therefore 29 January. The OP has said "Date Zipcar informed me they had been issued a NTO: 11/02/2018"

Therefore due to Zipcar delaying matters, the option of transferring liability is gone. The delay also means that Zipcar have, through no fault of anyone else, eliminated any right to have representations considered, and any right to appeal to the tribunal, before the OP was even aware of the alleged contravention. In my view these defaults mean the council have made their money (I don't see them accepting out of time reps and it appears unlikely Zipcar would want to make reps anyway) and given it's now 15 February I suspect Zipcar have paid the penalty to avoid the 50% charge certificate increase.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
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stamfordman
post Thu, 15 Feb 2018 - 10:13
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I can't see that the liability transfer is relevant in these cases as it is clearly about contraventions incurred when the hiring period is live and not what happens at some point after the hiring contract has ended.
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4101
post Thu, 15 Feb 2018 - 10:19
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QUOTE (hcandersen @ Thu, 15 Feb 2018 - 09:13) *
Let's deal with the contract issue regarding the OP's alleged breach.

Was the OP in breach?

Yes, absolutely.

Why?
Because they did not leave the vehicle in one of the locations specified in the contract these being the zipcar bay, a resident's or shared use bay etc.

It does not lie with the OP to decide unilaterally to park elsewhere which is exactly what they did. The OP is arguing a redundant point IMO. They argue that when they left the vehicle in a contractually-unapproved location it was not in contravention and by virtue of notifying Zipcar that the car was parked other than as required under the contract this changes the contractual provisions. In effect..hello Zipcar, I've left the car where it will be in contravention in *** hours, you'd better get your skates on....!

I do not accept this argument. By extension any Zipcar driver could decide to leave their vehicle wherever they chose and simply by telling Zipcar would absolve themselves of their contractual obligations!

So IMO the OP was in breach.

But it appears so are Zipcar. It is clearly their policy to offer hirers the option to have the liability transferred or be charged and IMO this would form an express or implied condition of their contract. They are therefore contractually required to offer this allowing the hirer the opportunity to choose.

So OP stop arguing the toss about the contravention, get back and tell them to transfer liability, it this is what you want.

But if what you're angling for is to not have the NTO transferred and to not pay a penny, then come clean about this because this affects advice.


This is a forum relating to COUNCIL PCNS, not your views on private contract law.
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hcandersen
post Thu, 15 Feb 2018 - 10:23
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No it is not, this is a conclusion, as yet untested. The authority may disregard but are not obliged to.

It is possible, maybe even probable that the special relationship which exists between Zipcar and the authority extends to additional time in which to make reps.

It is foolish to ignore this route if this is what the OP wants.


Their 5 days are up today. If I were the OP I'd get my skates on and confirm that they want Zipcar to transfer liability as per their offer in the email dated 10th.

And as regards Zipcar's illegal contract conditions, exactly where and how does anyone think this is going to be established?

As per the current parallel thread, the easiest and most accessible means is via small claims because the company did not mitigate the OP's losses - by making reps regarding transferring liability which, as with most authorities would lead to the re-offer of the discount in the event of unsuccessful reps.

But the OP does not help their case if they do not elect for transfer within the 5-day period.

This post has been edited by hcandersen: Thu, 15 Feb 2018 - 10:24
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cp8759
post Thu, 15 Feb 2018 - 10:26
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QUOTE (4101 @ Thu, 15 Feb 2018 - 10:19) *
This is a forum relating to COUNCIL PCNS, not your views on private contract law.

Still, if we can use private contract law to mitigate the OP's purported liability for a PCN, I don't see anything wrong with that.


--------------------
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4101
post Thu, 15 Feb 2018 - 10:41
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QUOTE (cp8759 @ Thu, 15 Feb 2018 - 10:26) *
QUOTE (4101 @ Thu, 15 Feb 2018 - 10:19) *
This is a forum relating to COUNCIL PCNS, not your views on private contract law.

Still, if we can use private contract law to mitigate the OP's purported liability for a PCN, I don't see anything wrong with that.



It cannot be used to mitigate anything. Period.

The OP has taken my advice and is going to get the audio of his phone call. Until then there is nothing else to say, this will just serve to clog the thread.

Until and unless there is a transfer of liability this is not a council pcn case. Its a private contract law dispute.
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hcandersen
post Thu, 15 Feb 2018 - 10:51
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It's not often we agree, I've noted it in my diary. laugh.gif

But the OP must elect for the transfer option - this offer is still extant. They do themselves no favours by ignoring it.

Stay within the contract and respond to their offer which they were obliged to make because it is a contractual condition, express or implied.

Step outside and .......

This post has been edited by hcandersen: Thu, 15 Feb 2018 - 10:52
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ZipCarDriver
post Thu, 15 Feb 2018 - 15:18
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Thanks for your viewpoints, taking a measured view, my biggest outrage to this is not the fine itself - it's how ZipCar have handed it. I would be much more inclined to settle with the 50% discount which would have originally been on the table. However, I was deprived of any options and that seems deeply unfair.

As Stamfordman mentioned, the car was not on hire at the time of the contravention. The PCN was issued the day after I hired the car, would that not therefore make this ground invalid?

"We are a hire firm, the vehicle was on hire at the material time and the hirer accepted liability in writing for any Penalty Charge Notice issued to the vehicle wile it was on hire. Tick box 'D' if the vehicle was on hire at the time of the contravention and the hirer signed a formal agreement accepting liability for parking charges. You must give the name and address of the hirer at the relevant time"

This post has been edited by ZipCarDriver: Thu, 15 Feb 2018 - 15:39
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hcandersen
post Thu, 15 Feb 2018 - 16:08
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OP, are you going to contact Zipcar today or not?

If not, they may pay and the issue is closed as regards your thoughts on the contravention.

You ideas regarding making reps and their grounds are pointless unless you get the NTO transferred.

@4101, we've resumed a normal relationship I see.

Of course the issue of the contract is pertinent. Previous advice by some to contact the council is of course not.

The only way we can help is to get the OP to grasp the point that under parking law there is NO way for them to argue their case through the appeals procedure unless the NTO is transferred.

And as transfer is a contract matter it follows that by using the contract route the OP could achieve their parking outcomes, in as much as being able to make reps is concerned.

But I don't hold out much hope. The OP still thinks they did nothing wrong - except of course to park the car where it would be incontravention and pass this buck on to Zipcar. Well it's not worked.
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stamfordman
post Thu, 15 Feb 2018 - 16:13
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There does seem to be a grey area about whether Zip can transfer liability for PCNs incurred outside of the time you were the hirer but as HCA says if they offer this you may as well take them up on it.

This post has been edited by stamfordman: Thu, 15 Feb 2018 - 16:15
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ZipCarDriver
post Thu, 15 Feb 2018 - 16:25
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Ok thanks, will give it a try.

Sent - Will let you know when I receive a response. Appreciate your advice.

QUOTE
Dear Sir or Madam,

As per my previous emails, I would like to confirm that I feel that the Penalty Charge Notice may have been incorrectly issued and would like the option to appeal.

Further to this, Zipcar has no authority to collect payment of PCNs on behalf of local authorities. The correct legal procedure in this scenario is for Zipcar to appeal the Penalty Charge on the ground that Zipcar is a hire firm, and supply the details of the person who hired the car (In this case that would be me). If you look on the Notice to Owner, you will see it quite clearly states on the second page under ground D:

"We are a hire firm, the vehicle was on hire at the material time and the hirer accepted liability in writing for any Penalty Charge Notice issued to the vehicle wile it was on hire. Tick box 'D' if the vehicle was on hire at the time of the contravention and the hirer signed a formal agreement accepting liability for parking charges. You must give the name and address of the hirer at the relevant time"

It is Zipcar's responsibility to appeal on this ground within the 28 day period provided, this is provided for in the Traffic Management Act 2004 and its subordinate regulations. Please note I will not accept any liability for Zipcar's failure to follow the correct procedure established by law, which must be followed to transfer liability. I also remind you that the legal process set out under the Traffic Management Act 2004 takes precedence over your terms and conditions.


Best,



This post has been edited by ZipCarDriver: Thu, 15 Feb 2018 - 16:16
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