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APPEAL RE: PPC Name CHARGE ****** / ******, TOWN QUAY SOUTHAMPTON
CAR PARK 31/01/2018, VEHICLE REG: **** ***
POPLA Ref: 6060798502

I am the registered Keeper of the above vehicle and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1. Parking at Southampton Town Quay is subject to Non-relevant land where Byelaws apply

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

3. Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.

4. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

5. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.
6. My appeal appears to have been disregarded without any due consideration or adequate response.
Here are the detailed appeal points.

1. Parking at Southampton Town Quay is subject to statutory control

Paragraph 3(1) of Schedule 4 of POFA 2012 states that in this Schedule !!!8216;relevant land!!!8217; means any land (including land above or below ground level) other than:

a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
b) a parking place which is provided or controlled by a traffic authority;
c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

Although ParkingEye!!!8217;s PCN makes no mention of Southampton Town Quay being subject to statutory control, parking at this site is subject to Associated British Ports Southampton Harbour Byelaws 2003 (the ABP Byelaws) this location is therefore not relevant land for the purposes of POFA 2012.

I include with my submission a copy of the ABP Byelaws, drawing POPLA!!!8217;s attention to Part IV (Goods and Road and Rail Traffic), in particular the terms of Paragraphs 37 and 39 which specifically refer to leaving vehicles unattended (i.e. parking) thereby confirming that parking on the Port of Southampton!!!8217;s land is subject to statutory control.

I also draw POPLA's attention to the map on Page 20 of the ABP Byelaws which confirms that Southampton Town Quay lies within the boundaries of the Port of Southampton for the purpose of the ABP Byelaws. I have also included a more detailed ABP map which defines more clearly the boundaries of the Port of Southampton.
For clarification I have highlighted in this image the approximate location of the vehicle at the time of this incident.


POPLA has previously determined that Southampton Town Quay is not relevant land; I refer you to POPLA case ref.6060755093 and case ref.6062356150

Therefore ParkingEye has no lawful right to rely upon POFA 2012 to claim unpaid parking charges from the vehicle!!!8217;s keeper and whilst I have informed the driver of this case, I am under no obligation to disclose the information as to who the driver was at the time.


2. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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. 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 parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed 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.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
!!!8220;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 !!!8216;reasonable presumption!!!8217; 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.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT capable of transferring the liability for the charge using the Protection of Freedoms Act 2012.

I also note case ref.6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law stated:
''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.''

This is relevant due to the fact that, although the case she refers to is talking about the fact that ParkingEye did not use POFA on that occasion, on this occasion ParkingEye are unable to use POFA to transfer the charge to myself as the keeper of the vehicle.

3. No right to charge motorists for overstaying

Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

"I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in. (There are VAT implications when a car park is a revenue generating business that may impact upon a landowner and that is why it needs to be established that they need to have granted permission in their lease.")

4. No valid contract with landowner

It is widely known that some contracts between landowner and parking company have !!!8216;authority limit clauses!!!8217; that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye v Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company!!!8217;s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided !!!8216;witness statements!!!8217; instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner!!!8217;s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

5. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication

!!!8220;Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear!!!8221;

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

6. My appeal appears to have been disregarded without any due consideration or adequate response.
Despite the fact that Parking Eye have my details on file as the Registered Keeper you!!!8217;ll notice their reply is addressed to !!!8220;Dear Sir / Madam!!!8221; which implies that this is simply a generic letter with no personalised content relevant to my case beyond the time, location, and vehicle being driven.
Further I asked three questions of Parking Eye, none of which were answered in any way. When asked if the charge represents the damages for breaches of contract Parking Eye declined to comment. When asked to provide dated photos of the signs that Parking Eye claim to be on site and which is the basis of any contract formed Parking Eye declined to attach them. When asked to provide all photographs taken of the vehicle Parking Eye again failed to respond. From the total lack of response to my appeal I can only conclude that it either was not read, or was read but decided that Parking Eye had no need to prove that their signage was visible. I would add to this that the Parking Machine within the car park does take Cash and can only assume that a representative of Parking Eye attends the car park regularly to empty this machine, and I would further assume that Due Diligence would ensure that Parking Eye make every effort to ensure and record that their signs are both visible and not obstructed on a regular basis as without these signs being clearly visible any form of contract formed is void.
This leads me to the conclusion that their appeal process is flawed in that it appears to have either remained unread, and simply a generic template response was sent out which fails to adequately address nearly all the points raised in my appeal, or that ParkingEye is unable to provide answers to these questions due to lack of evidence. Their response naturally has a negative impact upon my appeal because without their clarification of these points I am unable to provide counter-evidence to dispute or disprove their responses and as such feel that they have failed to provide any evidence to the answer of those questions, and can only presume this is because they are unable to provide evidence and so have instead chosen to ignore these questions.

This concludes my appeal.

Yours sincerely,
Miss *******