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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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Umkomaas
post Wed, 6 Sep 2017 - 22:06
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QUOTE (MWJN @ Wed, 6 Sep 2017 - 22:54) *
Hi SchoolRunMum

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

Name
Address
Telephone
Email

Do you need to to complete this information for them?

Do you need to see the Online Form?

Thanks

They already have 2 of the 4 above. Give them a 'gash' telephone number (Whipsnade Zoo if you wish, or just transpose a couple of digits of your own phone number) and set up a 'throwaway' Gmail/Hotmail email address. No big deal.

This post has been edited by Umkomaas: Wed, 6 Sep 2017 - 22:07
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SchoolRunMum
post Wed, 6 Sep 2017 - 22:56
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QUOTE (MWJN @ Wed, 6 Sep 2017 - 22:54) *
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?


Other, yes.

All the rest suggest who was driving and that's an absolute con that they've updated their poxy website to make people tick those 'I did this...I was' boxes.

IMHO, ParkingEye are a pariah that need to be removed from this Country, how about them doing something useful in life...something that actually helps people?

This post has been edited by SchoolRunMum: Wed, 6 Sep 2017 - 22:56
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MWJN
post Thu, 7 Sep 2017 - 10:59
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Hi Umkomaas & SchoolRunMum

Thanks for replying back so quickly

Love the Whipsnade Zoo if you wish comment

One other question, you can put in Evidence, is it worth my showing a different example of a PCN with the PoFA on it and mine does not and also include an appeal in an word document before they issue me with a POPLA Code which is likely?

Thanks

smile.gif

This post has been edited by MWJN: Thu, 7 Sep 2017 - 11:22
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nosferatu1001
post Thu, 7 Sep 2017 - 14:44
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No, you don't show another NtK. Just show your NtK does not state any reliance on pofa.
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MWJN
post Thu, 7 Sep 2017 - 14:52
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Hi Nosferatu

Ok thanks for clarifying

I will submit today

Many thanks
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MWJN
post Thu, 7 Sep 2017 - 21:25
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Hi All

I am submitting an appeal to Parking Eye on the following

non-POFA PCN - as stated by SchoolRunMum

Hopefully I will get a cancellation and at worse a POPLA Code back to fight that Appeal

Keep you all updated

Thanks
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cabbyman
post Fri, 8 Sep 2017 - 18:35
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My money is on the POPLA code!


--------------------
Cabbyman 8 PPCs 0
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nosferatu1001
post Sat, 9 Sep 2017 - 05:18
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So start preparing a popla appeal
Or at least researching one.
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MWJN
post Sat, 9 Sep 2017 - 21:37
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Hi Nosferatu 1001

Will do thanks for the advice

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MWJN
post Wed, 13 Sep 2017 - 15:18
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Hi All

Cabbyman spot on POPLA Code provided

They rejected my appeal should I load it onto here with personal details removed for viewing

Thanks
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nosferatu1001
post Wed, 13 Sep 2017 - 15:26
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Load your POPLA appeal here. We dont usually care about their rejection, unless it says something unusual.
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MWJN
post Wed, 13 Sep 2017 - 15:41
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Hi nosferatu1001

Attached is my Rejection Letter

There was no mention on my appeal for POFA but they have included about it in the Rejection Letter

But will do the POPLA Appeal, am I likely to still win as the fine could increase to £100

Thanks

This post has been edited by MWJN: Wed, 13 Sep 2017 - 15:42
Attached File(s)
Attached File  PE_Rejection.doc ( 63K ) Number of downloads: 34
 
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cabbyman
post Wed, 13 Sep 2017 - 15:44
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We very rarely lose POPLA appeals. But, the small risk still exists. IF you lose, you have the option to pay £100 at that point, or await court papers.


--------------------
Cabbyman 8 PPCs 0
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MWJN
post Wed, 13 Sep 2017 - 16:04
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Hi Cabbyman

Willing to do the POPLA Appeal and risk paying the £100 fine

Hee rejection letter anything I can include as evidence?

Thanks
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nosferatu1001
post Wed, 13 Sep 2017 - 16:05
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Wow, woeful rejection. It doesnt even give a reason why it was rejected.

I would complain to the BPA that PE appear to reject with no consideration, meaning the appeal system is a mokcery. OF course, WE ALL know it is not a fair appeals system, but this is transparent.
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MWJN
post Wed, 13 Sep 2017 - 16:15
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Hi Nosferatu01

Will draw up an appeal tonight for review

It does not even like you said mentioned why rejected on my original reason

Thanks
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cabbyman
post Wed, 13 Sep 2017 - 16:28
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Don't rush the appeal. You have at least 3 weeks to fine tune it.


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Cabbyman 8 PPCs 0
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MWJN
post Wed, 13 Sep 2017 - 16:29
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Hi Cabbyman

Thanks will do

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MWJN
post Thu, 14 Sep 2017 - 12:55
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Hi All

POPLA Appeal in next reply

Let me know on any changes to stream line it

I have googled and found somebody else with a similiar Non POFA PCN and used reference to their draft appeal

I am not sure how I can make sure that I show the PCN has no Reference to POFA but have tried

The documents referenced are all already uploaded in previous posts

Thanks

Dear POPLA,
PCN Number: xxx
POPLA Verification Code: xxx

I write to you as the registered keeper of the vehicle xxxx, I wish to appeal the £100 Parking Charge Notice (PCN) issued by ParkingEye Ltd.

As the keeper of the car, but not the driver when the alleged event occurred, I submit the reasons below to show that I am not liable for the parking charge:

1. ParkingEye's Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used
2. The operator has not shown that the individual who it is pursuing is in fact liable for the charge
3. No Contract was entered into between the Parking Eye and the Driver or Registered keeper
4. No evidence of Landowner Authority

1.ParkingEye's Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

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 weeks 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.

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 ‘keeper liability’ or the POFA 2012 Legislation.

I have highlighted on the Photo of Page 2 of the PCN that there is no indication of Keeper Liability or the POFA 2012 Legislation has been followed – See PCN Issued Front Page Non POFA.JPG

On submission of Appeal to ParkingEye they were updated that the PCN had not followed POFA 2012 Legislation and the PCN was therefore incorrectly issued.

On Rejection Letter PE_RejectionLetter.doc no indication of acknowledgement from ParkingEye relating to the PCN issued to POFA 2012 Legislation has been met.

So, this is a charge that could only be potentially enforced against a known driver. Whilst I was an occupant of the car, I was not the driver, the driver has never been admitted and there is no evidence as to the identity of that individual, which brings me to point #2:

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. Only full compliance with Schedule 4 of the POFA (or evidence that a keeper was the driver) can cause a keeper appellant to be deemed by POPLA to be the liable party.

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

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. No Contract was entered into between the Parking Eye and the Driver or Registered keeper

Although I was not the driver of the event, I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. ParkingEye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999. 


4. No evidence of Landowner Authority

As ParkingEye Ltd does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what ParkingEye is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

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.''


Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours faithfully

This post has been edited by MWJN: Thu, 14 Sep 2017 - 22:44
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MWJN
post Thu, 14 Sep 2017 - 21:57
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Hi All

Hopefully my Appeal is more concise now

Look forward to feedback

Thanks again

This post has been edited by MWJN: Thu, 14 Sep 2017 - 21:59
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