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ParkingEye - pay discount? advice please

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  • Redx
    Redx Posts: 38,084
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    RayBoy1528 wrote: »
    The time from entry to exit was 2 hours 31 minutes. It was 12 minutes before paying. The time from parking ticket expiring and exiting the car park was 19 minutes.

    So is the 19 minutes out of the scope of the grace period for leaving the car park?

    you should have clearly stated this in your opening post

    12 + 19 = 31 minutes , so yes in theory it is outside of the scope of the 2 grace periods , so outside clause #13 of the BPA CoP

    so an extremely good and plausible story would be needed as to why there is such a large number both before and after , whereas 10 minutes before and 11 minutes after would have been just within the scope of clause #13

    BOTH are outside the scope for grace periods

    you appear to have misled me on this aspect
  • Coupon-mad
    Coupon-mad Posts: 130,114
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    I don't recall any threads about the Adelphi Hotel and would certainly complain, especially if you point out the time taken to register for the parking app, was counted and used against you. And especially if you were a genuine patron who tells them you are minded not to return and are about to post on TripAdvisor as you are so horrified, but wanted to give the Adelphi a fair chance to sort this harassment out.
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  • RayBoy1528
    RayBoy1528 Posts: 16
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    Following your advice I have wrote a complaint to the Adelphi hotel, I will let you all know what they respond with.

    Sorry for the confusion Redx, the overstay after the parking event is what I was trying to say in my original post, I appreciate I could have made this clearer putting it the way you have:
    "the driver did in fact still overstay by 20 minutes even when taking the payment time as the start time and not the ANPR image entry time".

    There is no good reason for staying on site longer than allowed. Although the driver was back at the vehicle before the parking ticket expired, they sat talking to a friend in the car before leaving. So short of lying there is no plausible story to present to POPLA.

    Hopefully the hotel will cancel the charge. I explained the frustration with 'pay by phone' and made my intentions of leaving a review on Trip Advisor and appealing to POPLA clear.
  • Umkomaas
    Umkomaas Posts: 41,199
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    So short of lying there is no plausible story to present to POPLA.
    Agreed, no need to lie. BUT, you do have plausible issues to put to POPLA. The NEWBIES FAQ sticky, post #3 gives you some ready written, lengthy points of appeal to copy and paste. In addition, a forum search using 'ParkingEye POPLA' or 'PE POPLA' will generate a number of successful appeals. Use recent ones to build your own.

    OK, Grace Periods might not work for you, but there's plenty more to go on.
    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.

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  • RayBoy1528
    RayBoy1528 Posts: 16
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    edited 1 June 2017 at 12:34PM
    Ok so here is my POPLA draft.

    Thanks in advance for all your feedback, it is appreciated!

    Regarding the evidence submitted to POPLA, should I not include the parking ticket as this clearly shows a 20 minute overstay? I could include a screenshot of the drivers bank statement which shows payment to ParkingEye but not times?

    POPLA appeal (web links removed in order to post):


    Dear POPLA adjudicator,

    POPLA Reference XXXXXXX
    Incident date XXXXXXX
    Car registration XXXXXXX
    PCN Number XXXXXXX
    Operator Name PARKINGEYE

    I write to make my formal appeal in respect of the above detailed Parking Charge Notice issued by ParkingEye Ltd in respect of an alleged breach of Parking Terms and Conditions at Britannia Adelphi Liverpool car park.
    I contend that I am not liable for this parking charge on the basis of the below points:

    1) No evidence of Landowner Authority
    2) The ANPR system is unreliable and fails to take into account the time it takes to use the ‘pay by phone’ system
    3) Unclear and Inadequate Signage
    4) Grace periods unclear and not properly applied

    1) 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:

    7.2 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



    2) The ANPR system is unreliable and fails to take into account the time it takes to use the ‘pay by phone’ system

    ParkingEye’s Automatic Number Plate Recognition (ANPR) records show no parking time, merely photos of my car driving in and out. It is unreasonable for this operator to record the start of ‘parking time’ as the moment of arrival in moving traffic if they in fact offer a ‘pay by phone’ system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of ‘parking time’ at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that evening.

    The driver had great difficulty paying for parking in this event due to the ‘pay by phone’ method instructed by the small and unclear signs in the car park. The signs instructed the driver to pay for parking over an automated phone line, however this system failed as the driver had to first create an online account and register a payment card with the system.

    The driver was unaware that they were required to pay from the point of entry to the car park and not from the time they purchased their ticket. ParkingEye is using ANPR technology to record and calculate the duration of stay for vehicles so has failed to apply the appropriate grace period, both at the beginning and end of the parking event.

    Section 21.1 of the British Parking Association Code of Practice states:

    “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.”

    The signage displayed in the car park does display a logo associated with ANPR, however the signage does not inform the driver that the data captured is used to calculate their stay or any statement that makes this implicit to the driver. As ParkingEye have not met the BPA requirements with regards to ANPR signage, I contest that the driver has not been made aware of this and could only reasonably assume the time stated on their ticket as the start of the parking time.

    The arrival time is recorded on the PCN as 18:36:55 and Departure Time: 21:08:48 which equates to 2 hours 31 minutes and does NOT include the time that it took the driver to find a space, park, read the signs, create an online account and purchase a ticket using the ‘pay by phone’ system.

    In addition I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

    So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common “time synchronisation system”, there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so “live” is not really “live”. Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR “evidence” from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary and to show how these camera timings are synchronised with the pay and display machine.

    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

    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:

    Link

    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:

    Link
    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:

    Link

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

    Link
    ''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:

    Link

    ''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:

    Link

    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.

    4) Grace periods unclear and not properly applied

    The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.

    The 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.”

    For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

    Kelvin Reynolds of the BPA says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this:

    Link

    Good car parking practice includes ‘grace’ periods
    “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.”

    The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.
    The BPA (Kelvin Reynolds is the Director of Policy & Public Affairs) is on record as shown above, as saying that the 'observation period' at the start might take one person five minutes, but another person 10 minutes, depending on various factors”.
    The alleged overstay, given Kelvin Reynolds' defined 'observation time' and the type of businesses at the location is certainly possible. Time would have been taken just driving in, no doubt in a queue, dodging groups of pedestrians carrying shopping and also waiting for other cars turning and reversing to park or leave, before reaching an empty bay then parking. After that, an average driver must unstrap any children, buggy, bags, then go to the display machine, read the terms and conditions and also the instructions of the machine to get the ticket.

    Taking both BPA 'Observation' and 'Grace' Periods into account, considering the type and location of this busy car park and unreliability of timestamped evidence on the photographs supplied and time associated with the ‘pay by phone’ system, I contend that the PCN was not properly given.

    Conclusion

    I contend it is wholly unreasonable and unfair to issue this PCN for overstaying a parking ticket purchased when the ‘pay by phone’ service requires a lengthy online registration process prior to paying when the parking timer has already started. The Terms and Conditions on the signs within the car park make no suggestion of what the ANPR images will be used for and so it can only be reasonably assumed that the parking start time is from the moment the parking ticket is purchased.

    I therefore respectfully request that my appeal is upheld and the charge is dismissed.

    Yours sincerely,
    XXXX
  • RayBoy1528
    RayBoy1528 Posts: 16
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    Hi all, I was just wondering if anyone has had a chance to look at my POPLA draft yet and has any suggestions?
  • Umkomaas
    Umkomaas Posts: 41,199
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    It looks like you've used the template appeal points from post #3 of the NEWBIES sticky. Can you confirm that is the case? Have you edited them at all? If not then they are 'good to go'.

    Have you added anything else? It's not easy going through 3,000+ words and spotting small additions. Just point us to them, it gets so busy here at times!

    On your Grace Period section, while you have quoted the relevant elements of the Code of Practice, there seems no connection to your own 'overstay' and how the grace periods should be sufficient to accommodate it.

    Links and photographs. Where possible, you should embed as many/much as you can to save the assessor having to jump backwards and forwards between your appeal wording and various other webpages. You want to try to make the assessor your 'friend'. Can you imagine the brain-mushing task of having to read dozens of 3,000+ word (and I've seen some at 6,000) appeals word by word each and every day of the week. It's hard enough here, where we can skim-read to a degree, but they have to analyse anything and everything in order to reach a considered opinion. They're welcome to the job IMHO.

    When submitting this, you convert it to a .pdf file and attach it to the appeal portal. Reason for appeal dropdown box - select OTHER.

    If you're not up against any silly deadline rush to get this off, wait to see if anyone else has any comment.
    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.

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  • RayBoy1528
    RayBoy1528 Posts: 16
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    Appeal points 1 and 3 were copied directly from post #3 from NEWBIES. The only editing to post 3 was to remove the URL links so that I could post to this forum, the links will remain in my POPLA submission.


    Point 2 has been changed to reflect my situation with ‘pay by phone’ and I’ve added a couple of paragraphs. I’ve highlighted these in red in my draft post above.


    After taking on board what you have said about the grace period section I completely agree, I didn’t notice it before despite proof reading! I will edit this to relate it to my specific event.


    On a different note, I had no replay back from the Adelphi hotel after writing to them about this PCN.
  • Coupon-mad
    Coupon-mad Posts: 130,114
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    Remove these two paragraphs, they are ancient, not good and will take POPLA's eye off the ball:
    In addition I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

    So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common “time synchronisation system”, there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so “live” is not really “live”. Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR “evidence” from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary and to show how these camera timings are synchronised with the pay and display machine.
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  • RayBoy1528
    RayBoy1528 Posts: 16
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    Hi everyone, below is my updated letter to POPLA.

    I have redrafted ANPR section and grace period section and removed paragraphs from ANPR section per c-m advice. Please can someone check over these changes before I sent to POPLA?

    I really appreciate all the help so far, many thanks!


    Dear POPLA adjudicator,

    POPLA Reference XXXXXXX
    Incident date XXXXXXX
    Car registration XXXXXXX
    PCN Number XXXXXXX
    Operator Name PARKINGEYE

    I write to make my formal appeal in respect of the above detailed Parking Charge Notice issued by ParkingEye Ltd in respect of an alleged breach of Parking Terms and Conditions at Britannia Adelphi Liverpool car park.
    I contend that I am not liable for this parking charge on the basis of the below points:

    1) No evidence of Landowner Authority
    2) The ANPR system does not comply with the BPA Code of Practice and fails to take into account the time it takes to use the ‘Pay By Phone’ system
    3) Unclear and Inadequate Signage
    4) Grace periods unclear and not properly applied

    1) 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:

    7.2 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


    2) The ANPR system does not comply with the BPA Code of Practice and fails to take into account the time it takes to use the ‘Pay By Phone’ system

    ParkingEye’s Automatic Number Plate Recognition (ANPR) records show no parking time, merely photos of my car driving in and out. It is unreasonable for this operator to record the start of ‘parking time’ as the moment of arrival in moving traffic if they in fact offer a ‘Pay By Phone’ system which the driver can only access after parking and then by undertaking a lengthy online registration process in order to make payment. The exit photo is not evidence of ‘parking time’ at all and has not been shown to be synchronised to the ‘Pay By Phone’ clock nor even to relate to the same parking event that evening.

    The driver had great difficulty paying for parking in this event due to the ‘Pay By Phone’ method instructed by the small and unclear signs in the car park. The signs, which instruct the driver to pay for parking over an automated phone line, fail to declare that an account must be created online first. The subsequent time attributed to the automated call and then to creating an online account and registering a payment card before being able to make payment (evidenced in screenshot below) has taken significant time in this event, time which has secretly counted against the permitted parking duration, unknowingly to the driver due to the breach of BPA CoP section 21.1 as detailed below.

    (bank statement screen grab of payment to PE here)

    The driver was unaware that they were required to pay from the point of entry to the car park and not from the time they purchased their ticket. ParkingEye is using ANPR technology to record and calculate the duration of stay for vehicles so has failed to apply the appropriate grace period, both at the beginning and end of the parking event.

    Section 21.1 of the British Parking Assoaciation Code of Practice states:

    “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.”

    The signage displayed in the car park does display a logo associated with ANPR, however the signage does not inform the driver that the data captured is used to calculate their stay or any statement that makes this implicit to the driver. As ParkingEye have not met the BPA requirements with regards to ANPR signage, I contest that the driver has not been made aware of this and could only reasonably assume the time stated on their ticket as the start of the parking time.

    The arrival time is recorded on the PCN as 18:36:55 and Departure Time: 21:08:48 which equates to 2 hours 31 minutes and does NOT include the time that it took the driver to find a space, park, read the signs, create an online account and purchase a ticket using the ‘Pay By Phone’ system.

    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

    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:

    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:

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

    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:

    archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

    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:

    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:

    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.

    In addition, it is mandated in the BPA CoP that the operator displays the BPA and AOS on all sites. Section 28.6 of the CoP states:
    “You should display the BPA and AOS logos on all sites. This will help the public to see that you are a legitimate operator, and show that the site is run properly.”
    The driver has no recollection of seeing these logos displayed, therefore I put ParkingEye to strict proof to provide evidence of this site displaying these logos.


    4) Grace periods unclear and not properly applied

    The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.

    The 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. 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.”

    For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

    In the case of this event, the first grace period must also allow time to use the ‘Pay By Phone’ system in place at this site. A system which requires first time users to read the signs, go online, create an account with the system and register a payment card before a parking ticket can be purchased.

    Kelvin Reynolds of the BPA says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this:

    britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

    Good car parking practice includes ‘grace’ periods

    “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.”

    The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

    The BPA (Kelvin Reynolds is the Director of Policy & Public Affairs) is on record as shown above, as saying that the 'observation period' at the start might take one person five minutes, but another person 10 minutes, depending on various factors”.

    The alleged overstay, given Kelvin Reynolds' defined 'observation time' and the type of businesses at the location is certainly possible. Time would have been taken just driving in, no doubt in a queue, dodging groups of pedestrians carrying shopping and also waiting for other cars turning and reversing to park or leave, before reaching an empty bay then parking. After that, an average driver must unstrap any children, buggy, bags, then go to the display machine, read the terms and conditions and also the instructions of the machine to get the ticket.

    Taking both BPA 'Observation' and 'Grace' Periods into account, considering the type and location of this busy car park and unreliability of timestamped evidence on the photographs supplied and time associated with the ‘Pay By Phone’ system, I contend that the PCN was not properly given.

    ParkingEye are using ANPR technology to calculate the duration of stay from recorded entry and exit times. This duration of stay is in fact ‘time on site’ and not time ‘parked’. By issuing this PCN based on the entry/exit times, ParkingEye have failed to apply the minimum grace period and so have breached section 13 of the BPA CoP.


    Conclusion

    ParkingEye have failed to comply with BPA Code of Practice on multiple accounts.

    I contend it is wholly unreasonable and unfair to issue this PCN for overstaying a parking ticket purchased when the ‘Pay By Phone’ service requires a lengthy online registration process prior to paying when the parking timer has already started on entering the site, thus not applying the grace period and breaching the code.

    The Terms and Conditions on the signs within the car park make no suggestion of what the ANPR images will be used for, a breach of BPA code, and so it can only be reasonably assumed that the parking start time is from the moment the parking ticket is purchased.

    I therefore respectfully request that my appeal is upheld and the charge is dismissed.

    Yours sincerely,

    XXXX
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