Shot myself in the foot...

Ok, great. Thanks for your quick response.

Louise.

Ok, great. Thank-you.

Pay & display at Aire Street, Leeds.
Upon arrival, the meter wasn't working so I tried to use the app but I couldn't get logged in. I then called the number but the automated service kicked me out because I was already a registered user. I decided to give up (after being there for 10 minutes) & headed to the train station car park instead. As I was leaving, a lady came over to tell me that she'd found a second working meter but I'd already decided to leave & hadn't thought about ANPR.

I explained all to PE but they responded stating that there were payment methods available on the day in question. I have not yet spoken to anyone at the City Council but will do so on Monday.

Thanks again,
Louise.

Hello,

I attach my draft POPLA appeal, should anyone like to offer feedback. As a new user, I've had to delete the links.

Many thanks for the advice and guidance,
Louise.

POPLA code (XXX - I assume I shouldn't post this here)

I am appealing this parking charge from ParkingEye and these are my appeal points against this unfair charge which was not properly given because I did not park nor agree to their spurious secret timing and alleged 'contract':


1, No reasonable grace period allowed.

I was the driver and I drove in with the intention of finding a parking space. However, due to the specific conditions of this badly-maintained car park (very stony/uneven surface and unclear signage and payment machines) I decided to locate a more user-friendly car park elsewhere and this event was all over within a (perfectly reasonable) few minutes.

Firstly, my vehicle entered the car park and the entrance is narrow (one car can get past at a time, same narrow entrance and exit for all as far as I recall, with cars parked alongside meaning you have to queue before you can drive further in, and when leaving). Unbeknown to me, at this point I was already being timed but I had no idea of this unfair business practice which was not obvious at all and the cameras were very small and hidden high up.

The BPA Code of Practice (CoP) in section 13.4, requires operators to: “allow the driver a reasonable period to leave the private car park'' and the CoP continues: ''If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes”. Whilst this is a medium sized car park it is narrow and badly maintained which I assume ParkingEye will not show in their photos.

The facts are that it is difficult to drive around and hard to find a space here that is not badly pot-holed. When manoeuvring through this site it would be at least 5 - 10 minutes before any driver is likely to have managed to park and then walked over to a pay machine to read the wordy terms.

These machines are only situated at the two extreme ends of the site and are old, the screens are scratched, the keypads faded and the tariffs and t&cs unclear. There is nothing on the 'point of sale' machines about any £100 charge, nor about the fact you have secretly already been 'clocked' ten minutes earlier and have by then, just seconds to read the terms then quickly hop back in a car and drive like the clappers to get out to frantically avoid a penalty you never agreed to. The period between entry and leaving was (apparently, but unproven as synchronised timings in and out of the site) just 10 minutes.

I stood for mere minutes at the faded & scratched machine, trying to work out if I had the right change and what the various different terms are at certain times of day, because not only is the car park surface not 'user-friendly' but nor are the terms immediately clear. Unfortunately, the machine was out of service. I then made unsuccessful attempts to pay via phone and via the ‘Pay by Phone’ app before a fellow motorist advised that there was an alternative ticket machine elsewhere in the car park.

Due to the unacceptable condition of the parking surface - full of pot-holes - as well as unclear signage and an inability to use the first broken ticket machine (once I had made out the faded words on the old, weather-worn screen) I decided to leave without accepting any 'contract'. To be clear: I did NOT accept their contract by performance because (unlike in ParkingEye v Beavis) my actions did not involve parking and leaving the car. In fact it is common ground that I soon drove out. That action, within mere minutes, was recorded by the exit camera as I waited to re-join the road and the fact I left as quickly as I possibly could, given the difficult car park conditions, proves my non-acceptance of the terms.

So, given the state of this site and machines and signs, my actions surely fall well within a reasonable 'observation period' (at the start) plus the 'grace period' (the time allowed to get back into the car, vacate any space, drive past other cars and queue at the road, to leave, which the CoP defines must be a MINIMUM of ten minutes in itself).

Kelvin Reynolds of the BPA says in a published, official article about good practice:

“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 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 conclusion must be that with 5 - 10 minutes allowed for arrival plus AT LEAST ten minutes to subsequently leave, a mere 10 minutes all told in this particular badly-maintained car park must not generate a penalty against drivers who leave as soon as they can, waiting to drive past parked cars and giving way to arriving cars, and out onto the busy road.

The PCN cannot be deemed fairly or properly given.



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 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.

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. This site has also changed hands more than once in recent years so the contract needs to be shown to prove start and expiry dates as well as to sufficiently evidence the definition of the services provided by each party to the 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.



3. 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 at the machines.

There was nothing about £100 penalty on the machines and the wording was almost illegible.

*Marganne’s two photos of ticket machine*

There was no adequate notice of any £100 charge. You can see from the machine photos that you can only just make out a tariff but there is nothing about £100 and there were no clear signs near where I stopped whilst looking through my change and trying to work out the tariff applicable at different times and on different days.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that I 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. The terms on the machine were unreadable and the signs are not like the ‘brief & prominent’ signs in the Beavis case.

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

''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:

''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, placed high on a wall or pole, 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 & height, you would have to stand right in front of it and still need a magnifying glass, for a driver to be able to read any terms.

Under Lord Denning's Red Hand Rule, the charge 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. 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.

So, for this appeal, I put this operator to strict proof of where and for how long, the car was actually stopped 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 - and at BOTH P&D machines - not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be assimilated from a car before parking nor read & understood quickly at the machine. Mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this and a lack of machine pictures will mean my photo remains unchallenged.



4. The ANPR signs (if any) fail to state how the data will be used or that the clock is ticking before one even parks, and certainly well before even reading the terms and looking for the right change when deciding whether to stay.

I had no idea that my total stay, deciding whether to use the parking services in the waste-land area of the car park, would be calculated from the moment I drove in. This is a BPA CoP breach as well as an ICO breach and means I could not make an informed decision. As there are no signs to explain otherwise, the ANPR system cannot secretly calculate the time from entry from the road and the PCN was not properly given.

Yours faithfully,
(My full name).

Thank-you for all the help and guidance! I received the below this morning:

Thank you for submitting your parking charge Appeal to POPLA.
An Appeal has been opened with the reference 6060677253.
Parking Eye Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely
POPLA Team