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LBCCC from PE - at Tesco store

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  • Hi all, I have a bit of of an update on this which I wanted to share so you can help how to continue.

    As I mentioned, I have send the email as advised here and received auto-reply to wait for 10 days for a response.

    In the meantime, PE reached me advising they obtained my "right" address from a credit rating agency. My address hasn't changed, but they must have tried to play a card that my address is different allowing me to pay the reduced fee of £60 if I paid in 14 days. They also mentioned I could appeal (I thought this right have lapsed).

    Then I received an email response from them - standard letter asking me to post my appeal to them if it is within 28 days of their initial communication.

    My current plan is try and appeal it - given the new written letter with the "right" address seems to be restarting the counter?

    Worst case, I can just print and post the letter I have emailed them above.

    If you have suggestions, will be much appreciated.
  • Coupon-mad
    Coupon-mad Posts: 130,661
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    That's very good - that tracing letter DOES open the window to appeal, so start from scratch and appeal and win at POPLA!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • Just appealed - will keep you posted - hope it goes the standard way form now on.
  • parcaal
    parcaal Posts: 37
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    Hi all,

    I have used the most standard letter that was available on the forum to appeal - it was rejected. In summary - they say that the breach of T&Cs for parking they had a reasonable cause to ask for personal data. To cease processing my data it has to cause stress/damage, and they don't believe it does in my case (they quote Data Protection Act about this). Also they say that because I have contacted them and requested POPLA code, they need to continue processing the data. So they rejected the appeal.

    I haven't sent them bank statement about the transaction - this has personal information on it so decided not to include it in the appeal.

    I don't seem to have received a POPLA code...

    I face two options now - wait for further info or contact them. Waiting is simple. The only action I can think of is to send my first letter (the one responding to the LBCCC) a bit tweaked to reflect it is not for a LBCCC anymore.

    Any suggestions for next actions? This seems to be taking quite some time to resolve the PCNs...
  • Be aware that the parking eye online appeals forum has T&C's to the effect that you won't rely on any material in subsequent appeals not submitted during your first appeal.

    I believe that it is a term that infringes principles of natural justice and unlikely to be enforceable at Court. Nevertheless PE may try and rely on it at popla.

    You should redact your account details and other purchases (but not date/times of transaction) before relying on a bank statement.
  • Umkomaas
    Umkomaas Posts: 41,258
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    I haven't sent them bank statement about the transaction - this has personal information on it so decided not to include it in the appeal.
    But this often gets a cancellation from PE. They already know your name and address, so if you just redact your account and sort code numbers and any transactions not relating to the parking event, what’s the problem.

    I know this works because I did exactly that to have a PE PCN cancelled for one of my family.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .

    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.

    Private Parking Firms - Killing the High Street
  • parcaal
    parcaal Posts: 37
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    Umkomaas wrote: »
    But this often gets a cancellation from PE. They already know your name and address, so if you just redact your account and sort code numbers and any transactions not relating to the parking event, what’s the problem.

    I know this works because I did exactly that to have a PE PCN cancelled for one of my family.
    Given that driver is not named and the bank statement is mine, will this be a valid evidence?

    Johnersh wrote: »
    Be aware that the parking eye online appeals forum has T&C's to the effect that you won't rely on any material in subsequent appeals not submitted during your first appeal.

    I believe that it is a term that infringes principles of natural justice and unlikely to be enforceable at Court. Nevertheless PE may try and rely on it at popla.

    You should redact your account details and other purchases (but not date/times of transaction) before relying on a bank statement.

    I have seen their clause about evidence supplied should be complete, but my thought process is this is fundamental right to provide evidence at any stage of a dispute process.

    I feel this might be best call for a next step.

    With regards to POPLA - how do is the number received? Is it separate from the appeal response?
  • Umkomaas
    Umkomaas Posts: 41,258
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    Given that driver is not named and the bank statement is mine, will this be a valid evidence?
    But if PE have issued a compliant NtK then ‘hiding’ behind being the keeper is rather lost.

    But to get things in perspective, we are not dealing with a MI5 case, just a parking ticket. PE don’t have staff on constant alert looking to spot subtle ‘slips’ by motorists who’ve inadvertently let their guard down for a few seconds. It’s a factory operation they run - on a real industrial scale, a million or more tickets every year.

    Your bank statement is just that - a bank statement. It cannot be any proof of who drove the car, a friend or a family member could have driven it and dropped you there for shopping while they waited in the car.

    Frankly, given that they’ve met PoFA requirements, there’s little to lose from a redacted bank statement, and much more to win for you.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .

    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.

    Private Parking Firms - Killing the High Street
  • parcaal
    parcaal Posts: 37
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    Hi all,
    It's me again. I have gone through the normal process and my appeal has been rejected at POPLA.

    Since the last time I have written here I have 1) appealed with PE and 2) appealed with POPLA - both unsuccessfully.

    My PE appeal was based around the bank statement (trying to confirm I was a customer and my ticket should be void) and covering grace periods again. As expected it was rejected.

    My POPLA appeal was as follows:
    Dear Sir/Madam,

    Re: ParkingEye PCN number: XXXXXX/XXXXXX
    POPLA ref: XXXXXXXXXX
    Vehicle registration XXXX XXX
    The basis of my appeal is on the following grounds:

    1) The minimum grace periods were not allowed by the operator
    2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    3) The operator has not shown that the individual who it is pursuing is in fact liable for the charge
    4) The ANPR system is neither reliable nor accurate, Time on site is not parking time
    5) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    1.) Lack of Observation and Grace periods either side of allowed parking time.
    The car entered the car park at 19:44 and parked shortly afterward. The departure time was 20:15 There is a free 20-minute period of parking allowed within this car park – the period observed was 31 minutes. The charge that was levied is unreasonable for overstaying in the car park for 11 minutes. British Parking Association code of practice (BPA CoP) states:
    13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
    13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
    13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
    13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.
    Good car parking practice includes ‘grace’ periods and account for situations like above
    Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) says there is a difference between ‘grace’ periods and ‘observation ...
    “An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.!
    “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”
    So the BPA believes that 5-10 minutes’ observation' period is acceptable depending upon various factors (e.g. Christmas shopper queues) and then you must allow a MINIMUM of another ten minutes at the end - and Mr Reynolds says: ''there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.'
    The Signage on entry to the XXXXXXXX Road car park is not clear detailing the grace period, when the parking period begins and its parking charges, see signage as follows:


    2.) 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 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 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:
    7.1 “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the BPA Code of Practice and that you have the authority to pursue outstanding parking charges”. The operator has not provided any evidence of this.

    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

    3.) The operator has not shown that the individual who it is pursuing is in fact liable for the charge
    The appellant has not been identified as the driver of the vehicle in question at the time of the relevant parking event. The operator is therefore pursuing the registered keeper of the vehicle in this instance. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper of the vehicle, the regulations laid out in PoFA 2012 must be adhered to.

    4.) ANPR system

    I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps. By close examination of the photographs, the details (time, date, licence plate) are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

    I would challenge Parking Eye Ltd to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.).

    BPA COP 20.5 states
    When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.

    5.) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

    In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

    http://imgur.com/a/AkMCN

    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

    Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself

    The letters seem to be no larger than .40 font size going by this guide:

    http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

    ...and the same chart is reproduced here:

    http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a '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.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

    As a result of the above points, I therefore request that POPLA uphold my appeal and cancel this PCN.

    Best Wishes

    Then I got the refusal of my appeal as follows, published here:

    http://forums.moneysavingexpert.com/showthread.php?p=73625572&posted=1#2831

    It would be appreciated to get some advice on what are the next steps. I am aware I can't challenge the decision anymore, but I am still hoping there is a way to battle the fee still? any advice will be super appreciated..
  • beamerguy
    beamerguy Posts: 17,587
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    edited 28 December 2017 at 8:02PM
    I read that decision which is yet another ignorant
    POPLA decision ..... POPLA really have become
    the joke of the century

    Did you actually complain to the CEO of Tesco
    to get it cancelled ??? Plenty of time left

    Tesco do everything wrong, they abuse their customers
    with these parking vermin and now they want to poision
    them with dodgy turkeys at Christmas
    Two good reasons not to use Tesco's
    http://metro.co.uk/2017/12/27/tesco-says-sorry-selling-rancid-turkeys-smelled-disgusting-7185961/
    God knows what other gastronomical delights they sell ????

    POPLA is not the end, you now wait to see what PE do
    and then return here for help
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