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Parking Eye KFC Walkden (Ellesmere Centre)
phey708
post Wed, 18 Sep 2019 - 17:50
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Hi all,

I have received a letter from ParkingEye on the 10th of September for a parking charge which occurred on the 26th of July. It was for staying 1 hour 4 minutes in the KFC carpark between the hours of 9:11 to 10:15 which is located at Ellesmere centre in Walkden. Although I am the registered keeper at the time, I was not the driver and I will not want to mention the driver as this is a public forum.

On the back of the letter it says the offence is for staying 0 hours and 0 minutes in the carpark so I suspect the charge is because the car has been parked outside of the KFC opening times. Obviously I don't feel this is a fair charge as no detrimental loss could of occurred as KFC is not even open. I really want to appeal this so what would you recommend?
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post Wed, 18 Sep 2019 - 17:50
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Jlc
post Wed, 18 Sep 2019 - 18:36
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Does the reverse of the PCN mention Protection of Freedoms Act?

'Loss' is challenging since the Supreme Court ruled on it.

This post has been edited by Jlc: Wed, 18 Sep 2019 - 18:36


--------------------
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, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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phey708
post Wed, 18 Sep 2019 - 20:06
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QUOTE (Jlc @ Wed, 18 Sep 2019 - 19:36) *
Does the reverse of the PCN mention Protection of Freedoms Act?

'Loss' is challenging since the Supreme Court ruled on it.


Nothibg about Protection of Freedons Act. Just privacy notice explaining what data is held and for what reasons.
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ostell
post Wed, 18 Sep 2019 - 20:24
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I'm guessing but this is probably appropriate:


Dear Sirs,

I have just received your Notice to Keeper xxxxx for vehicle VRM xxxx

You have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to deliver the notice within the relevant period of 14 days as prescribed by section 9 (4) of the Act. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

There is no legal requirement to name the driver at the time and I will not be doing so.

Any further communication with me on this matter, apart from confirmation of no further action and my details being removed from your records, will be considered vexatious and harassment. This includes communication from any Debt Collection companies you care to instruct.

Yours etc


First class post with free certificate of posting from a post office.
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phey708
post Tue, 8 Oct 2019 - 11:27
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Hi all,

Recieved a reply back yesterday stating that my appeal has been unsucessful and i havd been issued a POPLA code. What shoulf i put in my appeal bearing in mind that I have not actually been to this car park snd seen signage etc?
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ostell
post Tue, 8 Oct 2019 - 11:53
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Google maps streetview perhaps?
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The Rookie
post Tue, 8 Oct 2019 - 11:53
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Your primary appeal point will be PoFA but you should always challenge signage (visibility and content) and standing as well.


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
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SteB
post Tue, 8 Oct 2019 - 16:55
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Not 100% sure about this without revisiting the centre, but as far as I was aware there is ample free parking at the Ellesmere Centre, which includes a big Tesco Extra that would certainly be open during those hours... so I don't actually understand why the driver parked in the KFC car park specifically...

Having said that, looking at the plans and google street view, it all looks to be the property of The Derwent Group so surely the same parking rules apply across the estate?
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phey708
post Sun, 13 Oct 2019 - 17:01
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Hi,

Can someone check over this draft appeal before it is submitted:



Dear POPLA,


Ticket number: [insert ticket number]


Vehicle registration number: [registration number]





On the [date], I received a Parking Charge Notice in the post from ParkingEye that the above mentioned vehicle had been parked without the landowners permission and that they had determined this from photographic evidence. I am appealing this parking charge notice on the following basis:


1) As the registered keeper I wish to refute these charges as the parking company have failed to identify the driver of the vehicle. I declined the company’s invitation to name the driver, which is not required of me as the keeper of the vehicle. In order to hold the registered keeper responsible for the charges they are required to adhere to the obligations of the POFA act 2012. The Notice to Keeper does not comply with the obligations of the POFA act 2012 schedule 4 sub-paragraph 9 (2 & 5)


The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)


Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on 6th January 2019. The relevant period is therefore the 14 day period from 7th January 2019 to 21st January 2019 inclusive. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales. The “Letter Date” stated on the PCN is 23rd January 2019 and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on 25th January 2019, well outside of the relevant period.


The Notice to Keeper does not warn the keeper that, if after a period of 28 days, the parking company has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)


POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a NTK must adhere to the following points:



The notice must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—


(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and


(ii) the creditor does not know both the name of the driver and a current address for service for the driver,


the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;



The operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.


2) I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give ParkingEye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, ParkingEye’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require ParkingEye to demonstrate their legal ownership of the land to POPLA.


I contend that ParkingEye is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.


I believe there is no contract with the landowner/occupier that entitles ParkingEye to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to ParkingEye to prove otherwise so I require that ParkingEye produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between ParkingEye and the owner/occupier, containing nothing that ParkingEye can lawfully use in their own name as a mere agent, that could impact on a third party customer.


3) The signs outlining the terms and conditions were not visible from a distance and the words are unreadable. In order to read the contract and accept the terms and conditions, the driver would need to stop on the road which would be unreasonable, and as well as this, to read the terms and conditions whilst entering the car park you would automatically be in breach of the terms and conditions as parking before 10am is forbidden. I put ParkingEye to strict proof otherwise; as well as a site map they must show photos of the signs as the driver would seem them clearly on entering the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.


The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ”Signs should be readable and understandable at all times, including during the hours of darkness…when parking enforcement activity takes place at those times. This can be achieved…by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit…should be made of a retro-reflective material similar to that used on public roads”.


Based on the above points, I would request that this parking charge is dismissed and to receive no further notice from ParkingEye in regards to this case.


Yours Respectfully,


[name of RK]

Thanks.

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phey708
post Mon, 14 Oct 2019 - 17:31
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bump
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Jlc
post Mon, 14 Oct 2019 - 17:40
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QUOTE (phey708 @ Sun, 13 Oct 2019 - 18:01) *
The operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

They are not breaching it. Simply not able to utilise it.

QUOTE (phey708 @ Sun, 13 Oct 2019 - 18:01) *
I require ParkingEye to demonstrate their legal ownership of the land to POPLA.

Not ownership, but that the landholder has granted them sufficient interest in the land (to issue and enforce parking contracts).


--------------------
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, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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