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Parking Eye Swansea Marriott Hotel - PCN
MWJN
post Sun, 3 Sep 2017 - 08:56
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Hello All

Unable to find any related cases for Parking Eye PCN Fines from parking in Swansea Marriott Hotel

PCN on Saturday 02nd September for a stay on 19th August 2017

The Date it was sent was on 30th August but came in a non date marked envelope

A friend who was attending a football match in Swansea

Due to waiting for over 1 hour did not end up putting in registration and paying to stay in Car although nobody left the car park

When left no payment made

They have sent the PCN showing the Car Registration and also photos of the car entering and Number Plates but no photo of the driver

Unsure that Parking Cameras where being used and payment is required for parking onsite 24/7

Currently the PCN states pay £60 within 14 Days for reduced amount then going up to £100

My questions is

Is this worth fighting or just pay the fine?

Many thanks

This post has been edited by MWJN: Sun, 3 Sep 2017 - 13:52
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post Sun, 3 Sep 2017 - 08:56
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kommando
post Sun, 3 Sep 2017 - 09:49
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Edit you post so as not to infer the drivers identity.

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MWJN
post Tue, 5 Sep 2017 - 12:14
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Hi All

Attached the PCN from Parking

Can anybody offer any advise?

Thanks
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cabbyman
post Tue, 5 Sep 2017 - 12:23
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Can you show the back of the PCN, please?

At the moment the RK should win because there is no mention of PoFA.


--------------------
Cabbyman 8 PPCs 0
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MWJN
post Tue, 5 Sep 2017 - 13:01
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Hi cabbyman

Attached

Thanks
Attached thumbnail(s)
Attached Image
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Jlc
post Tue, 5 Sep 2017 - 13:03
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QUOTE (cabbyman @ Tue, 5 Sep 2017 - 13:23) *
At the moment the RK should win because there is no mention of PoFA.

Indeed, non-PoFA notice has been issued. Dunno why, but take advantage of it...


--------------------
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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MWJN
post Tue, 5 Sep 2017 - 14:14
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Hi Jlc

I will research into - non-PoFA notice as noted in reply

Will submit to Parking Eye on Appeal and it will probably get rejected but then take it to POPLA on Appeal

Many Thanks
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Jlc
post Tue, 5 Sep 2017 - 14:22
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The appeal is that the PCN has been issued to the registered keeper and does not comply with the Protection of Freedoms Act. Therefore, they cannot hold the keeper liable.

(Don't reveal the driver)


--------------------
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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MWJN
post Tue, 5 Sep 2017 - 14:47
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Hi Jlc

I have a appeal ready should I post to Forum or send a copy via PM to you to review?

Thanks
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Jlc
post Tue, 5 Sep 2017 - 14:56
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Forum and many eyes... (Remove any personal details of course)

This post has been edited by Jlc: Tue, 5 Sep 2017 - 14:56


--------------------
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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kommando
post Tue, 5 Sep 2017 - 14:56
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Post to forum for critique.
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MWJN
post Tue, 5 Sep 2017 - 15:07
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hi kommando

Will do cheers

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I was not the driver. I contend that I am not liable for this parking charge on the basis of the below points:

This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. ParkingEye have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

“The notice must be given by — (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b) sending it by post to a current address for service for the keeper so that it is delivered to
that address within the relevant period.”

The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states:

“The relevant period… is the period of 14 days beginning with the day after that on which the specified period of parking ended”

The NTK sent for the Registered Keeper arrived some 14 days after the alleged event. Even if they had posted it on the same day that they describe as the ‘Date Issued’ (which previous cases suggest ParkingEye never do in any case at all because they use a third party batch-mail system, Whistl or iMail or similar, which adds up to a week before a letter is posted) it would be impossible for the notice to have been actually delivered and deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b). This means that ParkingEye have failed to act in time for keeper liability to apply. Furthermore, it is clear that ParkingEye know this because they have used the alternative version of their template ‘Parking Charge Notice’ – the one with a blank space near the bottom of page two and no reference to POFA.

The PCN also fails to identify the facts that caused a charge to arise and fails to describe the unpaid parking charges that they allege were unpaid at the machine. 7(2) states:
“The notice must - (b) inform the driver of the requirement to pay parking charges in respect of the
specified period of parking and describe those charges, the circumstances in which the requirement arose...and the other facts that made those charges payable...’’

This NTK stated that
‘’either’’ there was not appropriate parking time purchased “or” the vehicle remained longer than permitted (neither of which is a ‘fact’). In their rejection letter, ParkingEye revealed too late that they contend that ‘no parking was purchased’ on the date in question. This is an alleged ‘fact’ that the NTK failed to state in the first place.

Despite the wording of ParkingEye’s appeal stating that it is me that has to pay the charge, this is a charge that could only be potentially enforced against a known driver due to the failure to comply with the Protection of Freedoms Act. There is no evidence of who that individual was - and that person was not me. ParkingEye cannot therefore find me liable for the charge.

2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot –they will fail to show I can be liable because the driver was not me.

The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-

Understanding keeper liability
‘There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.”

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:

“I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible.As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.”

3) ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence. I require an unredacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £100.

I do not believe that the contract allows ParkingEye to charge paying visitors £100 for a system error. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.

Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:
“The written authorisation must also set out:
a) The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs
e) The definition of the services provided by each party to the agreement.''

4)The signs are not prominent, clear or legible from all parking spaces
The signs and the machine tariff board (and the small screen itself on the malfunctioning machine) were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language,’ contrary to the Consumer Rights Act 2015:

68 Requirement for transparency
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(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.

It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park.

The assessor will note from the picture below that the full terms and conditions on the signage are in a tiny font size. The driver has a diagnosis of dyslexia, causing a ‘substantial and long-term adverse effect’ on the driver’s ability to read, and therefore constituting a disability under the Equality Act 2010. This learning disability affects up to 7% of the population.

I assert that ParkingEye are in breach of the Equality Act 2010 by applying “a policy, criterion or practice in the same way to all individuals, but that policy has an effect that particularly disadvantages disabled people.” (The policy being the terms and conditions of the contract, and the practice the signs provided, which being in such small print would be difficult for a normally abled driver to be able to study, read and agree to, but significantly more difficult for somebody with significant dyslexia). This amounts to indirect discrimination under the Equality Act).


To allow such small print to involve part of the contract, ParkingEye should have to show that this is objectively justified, and justification cannot be on the grounds of cost alone. I further assert that in order to comply with the Disability Discrimination Act (bearing in mind that due to the prevalence of dyslexia, it can reasonably be foreseen by ParkingEye that drivers with dyslexia will use the car park), ParkingEye should make the ‘small print’ terms and conditions in a legible font size. There can be no justification not to do this, as the minimal cost would be the only limiting factor.

This post has been edited by MWJN: Tue, 5 Sep 2017 - 15:14
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kommando
post Tue, 5 Sep 2017 - 15:12
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They need to add a statement at the start that the are appealing as the keeper.

This means then that without keeper liability does not apply to the appellant but only to the driver.
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MWJN
post Tue, 5 Sep 2017 - 15:15
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Hi Kommando

Is this better and also ok to put in as Appeal to Parking Eye in the First Instance?

Thanks
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MWJN
post Wed, 6 Sep 2017 - 11:47
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Hi All

Just wondered if the appeal I have wrote is ready to be submitted to Parking Eye for Appeal?

Many thanks for everybody help

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LifeInTheBusLane
post Wed, 6 Sep 2017 - 11:52
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Just want to add that it might be worth a shot, before appealing, to contact the Marriott directly. My other half got an ANPR ticket for over-staying in a hotel car park and she sent them apology email and they cancelled it!
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MWJN
post Wed, 6 Sep 2017 - 12:01
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Hi LifeInTheBusLane

Will give it a go and see what happens from the Marriott

If they do not reply in the time before I will submit the Appeal to Parking Eye

Thanks
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SchoolRunMum
post Wed, 6 Sep 2017 - 21:00
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QUOTE (MWJN @ Wed, 6 Sep 2017 - 12:47) *
Hi All

Just wondered if the appeal I have wrote is ready to be submitted to Parking Eye for Appeal?

Many thanks for everybody help

It's far too long to fit anything like, in the PE appeals box online. NEVER post an appeal letter to ParkingEye, always appeal online.

You don't need all the quotes & detail, just say:

It's a non-POFA PCN (as proved by the back*) and you are aware they are unable to hold a keeper liable. As such, the contact is unwanted and unwarranted harassment, and they will lose at POPLA stage. In addition, you have complained to the Marriott Head Office, because the driver was a genuine patron, and you hope the Marriott contract will be ended under the weight of the complaints from victims of ParkingEye, because this sort of demand for money from a parasitical firm is unconscionable and utterly incompatible with the Marriott's customer service ethic.

Tell them to cancel or issue a POPLA code and they will lose anyway.

Only choose 'registered keeper' in the dropdown menu to identify yourself.

And don't wait before also complaining to Marriott Head Office (Google it and do it)! Leaving a complaint too late can make it harder to simply get it quashed.




*compare it with this one from another thread, which has the POFA words on the back which yours doesn't, LOL!

http://forums.pepipoo.com/index.php?showtopic=115559

Post #17 shows the back of a 'POFA 2012' version.

This post has been edited by SchoolRunMum: Wed, 6 Sep 2017 - 21:02
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MWJN
post Wed, 6 Sep 2017 - 21:26
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Hi SchoolRunMum

Many thanks for the quick reply

I will submit ASAP and keep you all updated on the progress

Many thanks
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MWJN
post Wed, 6 Sep 2017 - 21:54
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Hi All

When the appeal is submitted for the registered keeper they want contact details

Name
Address
Telephone
Email

To submit the Appeal will need to complete the Online Form with this information so will complete it to progress onto the online form stages for appeal

Looking at the Form it has a number of options -

I was a Customer on site
I was a visitor/guest of the site
I was working on site
I paid for parking
I entered an incorrect vehicle registration into the payment machine/terminal
I was a patient
I had difficulties with my vehicle on the day
I had a valid permit
I was not the driver of the vehicle
Other

I was going to select - Other as the option is this correct?

This post has been edited by MWJN: Wed, 6 Sep 2017 - 22:24
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