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#Post#: 38349--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: September 25, 2024, 5:19 pm
---------------------------------------------------------
Just to add, I noticed that the PCN has the location as 'KFC
Portsmouth, North Harbour'. I have searched further through the
forum and believe this is insufficiently accurate i.e. it does
not specify the address or postcode.
#Post#: 38353--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: DWMB2
Date: September 25, 2024, 5:39 pm
---------------------------------------------------------
There's never any harm challenging them to produce a valid
contract with the landholder - there's an example of how to do
that here:
HTML http://forums.moneysavingexpert.com/showpost.php?p=71287628&postcount=2343
HTML http://forums.moneysavingexpert.com/showpost.php?p=71287628&postcount=2343
--- Quote ---
> I noticed that the PCN has the location as 'KFC Portsmouth,
North Harbour'. I have searched further through the forum and
believe this is insufficiently accurate
--- End Quote ---
PoFA requires that they 'specify' the land - Unless there is
more than one KFC at Portsmouth's North Harbour then this is
likely to be a difficult sell.
#Post#: 38361--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: September 26, 2024, 1:20 am
---------------------------------------------------------
--- Quote from: DWMB2 link ---
>
> There's never any harm challenging them to produce a valid
contract with the landholder - there's an example of how to do
that here:
HTML http://forums.moneysavingexpert.com/showpost.php?p=71287628&postcount=2343
HTML http://forums.moneysavingexpert.com/showpost.php?p=71287628&postcount=2343
>
> [quote]I noticed that the PCN has the location as 'KFC
Portsmouth, North Harbour'. I have searched further through the
forum and believe this is insufficiently accurate
--- End Quote ---
PoFA requires that they 'specify' the land - Unless there is
more than one KFC at Portsmouth's North Harbour then this is
likely to be a difficult sell.
[/quote]
Hi
Do you mean this one?
"No evidence of Landowner Authority - the operator is put to
strict proof of full compliance with the BPA Code of Practice
As this operator 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 - such as any 'genuine customer' or 'genuine
resident' exemptions or any site occupier's 'right of veto'
charge cancellation rights, and of course all enforcement
dates/times/days, and the boundary of the site - is key evidence
to define what this operator is authorised to do, and
when/where.
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 authorised on the material date, 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 but crucial information such as the site
boundary and any bays where enforcement applies/does not apply.
Not forgetting evidence of the only restrictions which the
landowner has authorised can give rise to a charge, as well as
the date that the parking contract began, and when it runs to,
or whether it runs in perpetuity, and of course, who the
signatories are: name/job title/employer company, and whether
they are authorised by the landowner to sign a binding legal
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.
7.3 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"
And just to confirm, add this as another point to my appeal?
Thanks
#Post#: 38376--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: b789
Date: September 26, 2024, 5:02 am
---------------------------------------------------------
The best layout for a POPLA appeal is to list all the points and
then expand on each point separately. Eg.
--- Quote ---
> POPLA Appeal – PCN Reference [insert reference number]
> Appellant: Registered Keeper
> Date: [insert date]
>
> I am appealing this Parking Charge Notice (PCN) as the Keeper
on the following grounds:
>
> [indent]1. The Notice to Keeper (NtK) failed to comply with
Paragraph 9(2)(e)(i) of PoFA 2012.
> 2. The signage was insufficient and unclear, and there is no
evidence of the vehicle's location in relation to the signs.
> 3. The operator has not shown that the individual being
pursued is the driver.
> 4. No contract could be formed due to prohibitive signag.
> 5. No evidence of landholder authority.[/indent]
>
> 1. The Notice to Keeper (NtK) failed to comply with Paragraph
9(2)(e)(i) of PoFA 2012.
>
> The NtK issued by ParkingEye does not comply with the strict
requirements of Schedule 4, Paragraph 9(2)(e)(i) of the
Protection of Freedoms Act (PoFA) 2012. This section of PoFA
requires the NtK to "invite the keeper" to pay the unpaid
parking charge or to provide the details of the driver.
Specifically, the notice must contain either the word "invite"
or a suitable synonym that makes it clear the keeper is being
asked or encouraged to pay the charge.
>
> However, in this instance, the NtK fails to use the word
"invite" or any synonym of that term. Instead, the wording may
suggest that the keeper is being "informed" or "notified" of the
charge. This is a crucial distinction, as the Act expressly
mandates the use of language that conveys an invitation for the
keeper to pay. Merely notifying the keeper is insufficient, as
it does not fulfil the legal obligation imposed by Paragraph
9(2)(e)(i).
>
> The lack of an "invitation" in the NtK is a clear breach of
the statutory requirements under PoFA. It is not enough for
ParkingEye to claim partial or substantial compliance with PoFA,
as full compliance with each and every requirement of Schedule 4
is mandatory for the transfer of liability from the driver to
the keeper. The courts have consistently held that if any single
requirement is not met, keeper liability cannot apply.
>
> Given that ParkingEye has failed to comply with Paragraph
9(2)(e)(i), the registered keeper cannot be held liable for this
charge.
>
> 2. The signage was insufficient and unclear, and there is no
evidence of the vehicle's location in relation to the signs.
>
> Under the Protection of Freedoms Act (PoFA) 2012, Schedule 4,
Paragraph 2(2), "adequate notice" of the parking charge must be
given to drivers. In this case, no adequate notice was provided,
as there were no visible signs displaying the parking terms and
conditions at the entrance to the car park, at the location
where the vehicle was parked, or along the route to the entrance
of the KFC. The lack of signage at key locations means that the
driver was not informed of the parking terms, and therefore
could not have agreed to them. Without this essential
information, no contract could be formed.
>
> PoFA, Paragraph 2(3) further clarifies that "adequate notice"
means the signage must clearly specify the parking charge and be
positioned in such a way that the charge is brought to the
attention of drivers. In this case, ParkingEye did not display
sufficient signage to meet this requirement. The signage, if
present, was not clearly visible to the driver at any point
during their time in the car park, including the journey from
the parking space to the KFC entrance. As a result, the parking
charge was not communicated in a clear and transparent manner,
as required by law.
>
> Additionally, PoFA, Paragraph 9(2)(c) requires that the Notice
to Keeper describes how the parking charge arose and how the
requirement to pay was brought to the attention of the driver.
Given that ParkingEye has failed to provide adequate notice as
defined in Paragraphs 2(2) and 2(3), the Notice to Keeper does
not comply with this requirement. The NtK fails to explain how
the driver could have been made aware of the parking terms when
there was a lack of clear signage. Partial or even substantial
compliance with PoFA is not sufficient; full compliance with all
PoFA requirements is mandatory in order to establish keeper
liability.
>
> For these reasons, I expect ParkingEye to provide a detailed
layout of the car park showing the location of all signage,
including proof of the exact location where the vehicle was
parked and how this relates to any signage. They must also
provide evidence that the signage used to display the parking
terms and conditions is fully compliant with the British Parking
Association (BPA) Code of Practice. ParkingEye will be put to
strict proof of the vehicle’s exact parking location and the
relationship of that location to any signs passed between the
parking space and the KFC entrance.
>
> 3. The operator has not shown that the individual being
pursued is the driver.
>
> ParkingEye has failed to provide any evidence that the person
they are pursuing is the driver of the vehicle on the date of
the alleged contravention. As the registered keeper, I am under
no obligation to identify the driver, and I decline to do so.
Since the operator has not established the identity of the
driver, they are relying on the provisions of the Protection of
Freedoms Act (PoFA) 2012 to transfer liability from the driver
to the registered keeper.
>
> However, as outlined in Points 1 and 2 of this appeal, the
Notice to Keeper (NtK) issued by ParkingEye does not comply with
the mandatory requirements of Paragraphs 9(2)(e)(i), 2(2), 2(3)
and 9(2)(c) of PoFA. Specifically, it fails to "invite the
keeper" to pay the unpaid parking charge and has failed to
provide "adequate notice" as required by the Act. Without full
compliance with all of the requirements of Schedule 4 of PoFA,
ParkingEye cannot invoke keeper liability.
>
> Since ParkingEye has not fully complied with the strict
conditions laid out in PoFA to hold the keeper liable,
ParkingEye are put to strict proof that the person they are
pursuing is the driver. Unless ParkingEye can provide
unequivocal evidence that I was the driver at the time, or
demonstrate full compliance with PoFA (which they have not),
they cannot lawfully hold me liable for this charge.
>
> 4. No contract could be formed due to prohibitive signage.
>
> The signage at the car park does not constitute an offer of
terms for parking but is instead prohibitive in nature. The sign
specifically states that there is a 2 hour maximum stay between
10:00 am and 11:00 pm. The vehicle was parked between 09:12 am
and 10:08 am, which falls outside the allowed hours stated on
the sign. Consequently, the sign is communicating a prohibition
on parking before 10:00 am, meaning that no offer of parking is
made before that time.
>
> Under contract law, for a binding contract to be formed, there
must be a clear offer and acceptance. A prohibitive sign that
forbids parking outside certain hours does not offer any terms
for the driver to accept, as it simply informs the driver that
parking is not allowed. Since no contract could be formed before
10:00 am, no breach of contract can occur, and no parking charge
can be enforced.
>
> This position is further supported by the Consumer Rights Act
2015 (CRA). Section 62 of the CRA requires that contract terms
and notices must be fair. The CRA defines unfair terms as those
that create a significant imbalance in the parties’ rights and
obligations, to the detriment of the consumer. A prohibitive
sign, which forbids parking outside certain hours while still
imposing a penalty, creates such an imbalance. The driver is
effectively being penalised for parking at a time when no
contract was offered, which is not only unfair but also
unenforceable under the CRA.
>
> Additionally, under Section 68 of the CRA, terms must be
transparent. The parking terms were not sufficiently clear or
transparent in this case, as the signage failed to properly
communicate that the car park could not be used before 10:00 am
in a way that a reasonable consumer would understand. The
signage gives the impression of restricted access but provides
no legitimate offer of parking before 10:00 am. Given that a key
term of the contract (the availability of parking) was not
clearly communicated, this term fails the transparency test
required by the CRA.
>
> As such, ParkingEye cannot enforce any parking charge in this
instance because:
>
> [indent](i) No contract was formed prior to 10:00 am.
> (ii) The signage is prohibitive and does not offer any terms
of parking before 10:00 am.
> (iii) The signage and any terms invoked are unfair and lack
transparency under the Consumer Rights Act 2015.[/indent]
>
> 5. No evidence of landholder authority.
>
> The operator is also put to strict proof, by means of
contemporaneous and unredacted evidence, of a chain of authority
flowing from the landholder of the "relevant land" to the
operator. It is not accepted that the operator has adhered to
the landholder's definitions, exemptions, grace period, hours of
operation, etc. and any instructions to cancel charges due to
complaints.
>
> There is no evidence that the freeholder authorises this
operator to issue parking charges or what the land enforcement
boundary and start/expiry dates are, nor whether this operator
has standing to enforce such charges in their own name rather
than a bare licence to act as an agent ‘on behalf of’ the
landowner.
>
> The operator is put to strict proof of full compliance with
the BPA Code of Practice. As this operator does not have
proprietary interest in the “relevant 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 this operator 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 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
Code of Practice defines the mandatory requirements and I put
this operator to strict proof of full compliance:
>
> [indent]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.
>
> 7.3 The written authorisation must also set out:
>
> [indent](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[/indent][/indent]
>
> Conclusion:
>
> For the reasons outlined above, the PCN has been issued
incorrectly and I request that POPLA uphold my appeal and cancel
the parking charge.
--- End Quote ---
#Post#: 38399--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: September 26, 2024, 7:13 am
---------------------------------------------------------
Thank you so much for taking the time to draft the reply above.
I have now submitted my appeal to POPLA and will wait for their
reply.
I would like to sincerely thank everyone who has taken the time
to view and respond to this post so far, especially b789 and
DWMB2. Your help and support are truly appreciated, and I am so
grateful for your contributions.
#Post#: 38400--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: b789
Date: September 26, 2024, 7:16 am
---------------------------------------------------------
If the POPLA appeal is unsuccessful, it has absolutely no
bearing on the next steps, waiting to see if they decide to
issue a claim in the county court.
Please keep us updated on the outcome.
#Post#: 39607--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: October 6, 2024, 2:07 pm
---------------------------------------------------------
Hello all
PE have now submitted their operator case summary, which I have
attached (two links below)
I have the opportunity to provide comments on the summary;
however, due to my absence away on holiday over the past week, I
now only have until 7th October to submit any feedback.
I would appreciate any advice on whether further comments are
necessary.
Thank you in advance.
HTML https://imgur.com/a/2Y4YnNm
HTML https://imgur.com/a/ykNPcVF
#Post#: 39609--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: b789
Date: October 6, 2024, 2:21 pm
---------------------------------------------------------
So check the contract with the landowner to see if it is
actually valid on the date. Check the terms that state they are
permitted to issue PCNs in their own name.
You have the contracting party's name on the contract. Try and
get in touch with them and get them to tell PE to cancel the
PCN.
Has PE rebutted each and every point you raised? You need to go
through each point you raised and point out to the assessor
which points have not been rebutted.
When you have done that, show us what you intend to submit as
your response. You only need a single point not to be rebutted
and you win.
#Post#: 39610--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: DWMB2
Date: October 6, 2024, 2:32 pm
---------------------------------------------------------
Do you have any better quality images of the contract they've
provided? The small print is illegible in your uploads.
#Post#: 39614--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: October 6, 2024, 3:00 pm
---------------------------------------------------------
--- Quote from: DWMB2 link ---
>
> Do you have any better quality images of the contract they've
provided? The small print is illegible in your uploads.
>
--- End Quote ---
The original word document sent to me containing the contract
was very poor quality but was marginally better quality than
after I converted it to jpg and uploaded to imgur.
I can upload the original word doc if there is a way to do that?
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