parking eye Freeman hospital tyneside

Joefranpar

Quentin wrote: »

The only post on your thread you need to get a second opinion on is rockybones, and 3 of us gave you a second opinion about him/her!!!


Everyone else has tried to help you.

yep. its not rocket science to look at the ratings to the left and see who has a good standing on this site, so yeah, thanks all. much respect.

Joefranpar

the appeal to the trust failed as did the appeal to parking eye, so next stage, could someone check this appeal I will attach to the POPLA site please.

1) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability

As this was a Pay and Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed.

On the Notice To Keeper it only states that the car was in the grounds 30 minutes it also, fails to advise as to whether the contravention was an overstay or failure to pay.

This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. The Operator has the technology to record car registrations, to collect and record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''9(2) the notice must—
(b) Inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c) Describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d) Specify the total amount of those parking charges that are unpaid...'
NTK is not compliant, for example re this requirement:
The NTK specifically fails on all counts.

The registered keeper is submitting this appeal and Parking Eye do not have the identity of the driver, who is not the registered keeper.

As Parking Eye has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver.

A) - The unpaid parking charge that should have been requested (paragraph 9(1) of the Act) is that which was unpaid on the day before the Notice to Keeper was issued. This can only be the purportedly unpaid parking tariff and not £70 which had not been requested and which there was no facility to pay on the day before the Notice to Keeper was issued. Consequently £70 cannot be considered unpaid for the purposes of the Act. It clearly demonstrates that Parking Eye has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered keeper asked to pay the purportedly unpaid tariff.

– Parking Eye have failed to notify the registered keeper why the parking charge is due as is required by the Act. Their generic template PCN indicates that the vehicle supposedly stayed longer than was authorised or was not authorised at all. The Act states that the reason for the charge is made clear and again Parking Eye have failed to comply with the requirements of the Act and consequently cannot rely on its provisions.

2) The time in car park is noted to be 0 hours 30 minutes and I feel that this constitutes a reasonable grace period to allow an informed decision as whether to park or to pick a patient up and continue out of the car park without entering into any parking agreement, indeed without the driver even parking or exiting the car.
3) No standing or authority to pursue charges nor form contracts with drivers
The Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Parking Eye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Parking Eye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Parking Eye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Parking Eye.

4) The ANPR system is unreliable nor accurate.

ParkingEye's evidence shows no parking time, merely photos of a 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 and display 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 synchronized to the pay and display machine clock nor even to relate to the same parking event.

As keeper I cannot discount that the driver may have driven in, realised it was pay and display then driven out. The BPA even mention this as an inherent problem with ANPR on their website;
ww.britishparking.co.uk/How-does-ANPR-work


The BPA's view is: 'As with all new technology, there are issues associated with its use:
Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'


5) The charge was not based upon a GPEOL and there is no justification for breach of the duty to allow grace periods

This case is an unfair penalty and differs from the 'Beavis v Parking Eye' judgment as this was a pay and display carpark.

The charge is for an alleged (but denied) breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified that this non-landowning third party can claim a sum in excess of any damages. However, no such GPEOL or justification can apply here.

Unlike in Beavis, it is confidently argued that this charge (£70) is hugely disproportionate to any alleged unpaid tariff.

The charge is not a genuine pre estimate of loss and as this was a paid parking site that can be distinguished from Parking Eye v Beavis.

If Parking Eye believe that inadequate payment was made (which their PCN fails to make clear and which is denied by the driver) then their demand should be for any unpaid tariff as that would be their only loss.
£70 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If Parking Eye believes their charge is a genuine pre-estimate of their loss it is demanded they produce a detailed and itemised breakdown of how this has been calculated.

In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £40 on days 1 to 14, then £70 thereafter. This is clearly an arbitrary sum invented by the Respondent.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.


5) Unclear, inadequate and non-compliant signage

Due to their high position, overall small size, being unlit and the barely legible size of the small print, the signs in the car park are difficult to read. Furthermore, the signage is ambiguous and unclear because the entire sign is about 'PARKING TARIFFS' (not 'total stay') and the sign creates no obligations except to:

- Motorists must enter their full, correct vehicle registration when using payment machine.

The only place the word 'stay' is mentioned on the sign is where it talks about maximum stay of 14 hours, the rest is all about 'parking time'. So as the Pay & Display machine is the 'point of sale' and the P&D ticket is the receipt upon which an ordinary consumer would rely for the parking time, there was no contravention of the sign, as the option to park was not taken up.

POPLA is requested to check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. It is contended that the signs on this land, in terms of wording, position and clarity, do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach (which is denied here, due to the option of parking not being taken up).


6) Without a contract

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award Parking Eye Limited could seek would be damages. As there was no damage to the car park there was no loss to them or the landowner at all and therefore there should be no charge.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Coupon-mad

We had a case the other week where POPLA spotted a discrepancy between the PCN and Reminder at a Hospital car park, did you have the same contradiction? Check and if so, use it:

''This is made all the more confusing for a keeper appellant because the original PCN claims the signage in the car park clearly states that it is for 'permit/authorised vehicles' and they did not gain the appropriate permit/authorisation to park, yet the reminder states that the signage clearly states it is a 'pick up/drop off area', saying they have overstayed the permitted time. This contradicts the initial PCN, whereby it is stated that by not gaining the appropriate permit/authorisation, the Parking Charge is now payable.''

Then re the signage, I would change the basis of that point and move away from any suggestion that the car was in a pay and display part of the site.

Looks like when you drive into that Hospital site there are several different car parks with different restrictions and several routes the car could have taken, none of which are evidenced by a mere two ANPR photos from somewhere within the site. I doubt that it is even necessarily the case that these two pictures are taken at a corresponding entrance and exit.

Read this about a different Hospital but look how PE skewed the photos:

http://parking-prankster.blogspot.co.uk/2016/03/parkingeye-lose-in-court-accuse-drivers.html

So you could have another point citing 07/03/2016 Case B7FC00H1 – Parking Eye v Mrs B, before District Judge McKinnell at St Albans. Add a link to that Blog and say you put PE to strict proof that the car in this material case was not in the drop off/pick up area for 20 minutes and driving around the site for the other ten minutes, which does not involve any pay and display bay and falls well within the two Grace Periods set as mandatory, in the BPA Code of Practice:

13 Grace periods
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.

So, a few minutes is expressly allowed by the BPA rules, to drive in and around to find the right place to pick someone up, then 20 minutes allowed for drop off/pick up (as defined by the signs within that section) then AT LEAST another ten minutes to leave, easily exceeds the 30 minutes between PE's two photos which fail to evidence where the car actually is at both points anyway, within a sprawling NHS site.

I Googled 'Freeman Hospital Newcastle' and found an image in a newspaper article which shows loads of possible routes and car parks, including a 'drop-off area' which presumably allows up to 20 minutes free parking anyway and then there is an arrow for 'multi-storey car park' and also 'permit holders only beyond this point' even though there is also a sign saying 'public pay and display' pointing exactly the same way. You should also Google for that image and as long as it's the Freeman Hospital, USE IT as part of your evidence to prove the various places the car could have been, in between the two ANPR images.

A busy NHS set of mixed-use car parks reminded me of this POPLA win at the RVI Hospital, also in Newcastle:

https://forums.moneysavingexpert.com/discussion/comment/70346307#Comment_70346307

Parking Eye RVI Hospital Newcastle

Decision Successful - March 2016
Assessor Name: Rebecca Grimes

''Further, the appellant has provided a photograph of the entrance signage present. The operator has failed to provide this evidence. It is evident that two signs are present; “Entrance to multi storey car park” and “Vehicles displaying valid pay & display ticket or trust parking permit only”.

It is evident from reviewing the operator’s image of a site map, that when entering the site in question, there are multiple routes for a vehicle to take. As the operator is issuing a parking charge on the basis that the driver of the appellant’s vehicle did not comply with the terms and conditions of the car park, the burden of proof rests with the operator in showing that a contravention of the terms and conditions took place.

The operator has failed to provide evidence of where the appellant actually parked their vehicle and as such, I am unable to determine whether the appellant was able to see or read the signage present at the site in question during the time they spent at the site. Therefore, overall I am not satisfied that, on the balance of probabilities, the operator issued the Parking Charge Notice (PCN) correctly due to the contradictory evidence present. Accordingly, the appeal must be allowed.''

Joefranpar

I have added what I can, but will take a ride through to the Freeman on Monday, and photograph all the signage I can. I am starting to think the photos are from a specific staff car park, but cannot tell from the two crappy photos sent on the PCN
1) Keeper Liability The Notice to Keeper is not compliant with the POFA 2012 - No

It is made all the more confusing for a keeper appellant because the original PCN claims the signage in the car park clearly states that it is for 'permit/authorised vehicles' and they did not gain the appropriate permit/authorisation to park, yet no indication towards the photographs of a cars registration number states exactly where they were taken. If these photographs were taken at the main entrance to an area which contains 'permit/authorised vehicles', 'pay and display, and free 20 minutes parking in a drop off bay, then it is unclear as to which contravention is alleged. On the Notice To Keeper it only states that the car was in the grounds 30 minutes.
It is evident, that when entering the site in question, there are multiple routes for a vehicle to take. As the operator is issuing a parking charge on the basis that the driver of the appellant’s vehicle did not comply with the terms and conditions of the car park, the burden of proof rests with the operator in showing that a contravention of the terms and conditions took place.
This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. The Operator has the technology to record car registrations, to collect and record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''9(2) the notice must—
(b) Inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c) Describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d) Specify the total amount of those parking charges that are unpaid...'
NTK is not compliant, for example re this requirement:
The NTK specifically fails on all counts.

The registered keeper is submitting this appeal and Parking Eye do not have the identity of the driver, who is not the registered keeper.

As Parking Eye has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver.

A) - The unpaid parking charge that should have been requested (paragraph 9(1) of the Act) is that which was unpaid on the day before the Notice to Keeper was issued. This can only be the purportedly unpaid parking tariff and not £70 which had not been requested and which there was no facility to pay on the day before the Notice to Keeper was issued. Consequently £70 cannot be considered unpaid for the purposes of the Act. It clearly demonstrates that Parking Eye has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered keeper asked to pay the purportedly unpaid tariff.

– Parking Eye have failed to notify the registered keeper why the parking charge is due as is required by the Act. Their generic template PCN indicates that the vehicle supposedly was not authorised at all. The Act states that the reason for the charge is made clear and again Parking Eye have failed to comply with the requirements of the Act and consequently cannot rely on its provisions.

2) The time in car park is noted to be 0 hours 30 minutes and I feel that this constitutes a reasonable grace period to allow an informed decision as whether to park or to pick a patient up and continue out of the car park without entering into any parking agreement, indeed without the driver even parking or exiting the car. It follows that it is possible for a driver to approach one of the car parks and decide not to park, travel to the free parking drop off zone, and drive out, making a total time of 30 minutes acceptable. 07/03/2016 Case B7FC00H1 – Parking Eye v Mrs B, before District Judge McKinnell at St Albans. I would put PE to strict proof that the car in this material case was not in the drop off/pick up area for 20 minutes and driving around the site for the other ten minutes, which does not involve any pay and display bay and falls well within the two Grace Periods set as mandatory, in the BPA Code of Practice:

3) 13 Grace periods
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.

So, a few minutes is expressly allowed by the BPA rules, to drive in and around to find the right place to pick someone up, then 20 minutes allowed for drop off/pick up (as defined by the signs within that section) then AT LEAST another ten minutes to leave, easily exceeds the 30 minutes between PE's two photos which fail to evidence where the car actually is at both points anyway, within a sprawling NHS site.
3) No standing or authority to pursue charges nor form contracts with drivers
The Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Parking Eye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Parking Eye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Parking Eye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Parking Eye.

4) The ANPR system is unreliable nor accurate.

Parking Eye's evidence shows no parking time, merely photos of a 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 and display 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 synchronized to the pay and display machine clock nor even to relate to the same parking event.

As keeper I cannot discount that the driver may have driven in, realised it was pay and display then driven out. The BPA even mention this as an inherent problem with ANPR on their website;
https://www.britishparking.co.uk/How-does-ANPR-work


The BPA's view is: 'As with all new technology, there are issues associated with its use:
Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'


5) The charge was not based upon a GPEOL and there is no justification for breach of the duty to allow grace periods

This case is an unfair penalty and differs from the 'Beavis v Parking Eye' judgment as that was a pay and display carpark.

The charge is for an alleged (but denied) breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified that this non-landowning third party can claim a sum in excess of any damages. However, no such GPEOL or justification can apply here.

Unlike in Beavis, it is confidently argued that this charge (£70) is hugely disproportionate to any alleged unpaid tariff.

The charge is not a genuine pre estimate of loss and as this was a paid parking site that can be distinguished from Parking Eye v Beavis.

If Parking Eye believe that inadequate payment was made (which their PCN fails to make clear and which is denied by the driver) then their demand should be for any unpaid tariff as that would be their only loss.
£70 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If Parking Eye believes their charge is a genuine pre-estimate of their loss it is demanded they produce a detailed and itemised breakdown of how this has been calculated.

In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £40 on days 1 to 14, then £70 thereafter. This is clearly an arbitrary sum invented by the Respondent.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.


5) Unclear, inadequate and non-compliant signage

Due to their high position, overall small size, being unlit and the barely legible size of the small print, the signs in the car park are impossible to read whilst driving along the access roads. As the driver did not at any time exit the vehicle, or even enter a parking bay, it would have been impossible for the driver to have read, and agreed with any terms or conditions displayed on them.


6) Without a contract

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award Parking Eye Limited could seek would be damages. As there was no damage to the car park there was no loss to them or the landowner at all and therefore there should be no charge.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

steve1500

Joefranpar wrote: »

I have added what I can, but will take a ride through to the Freeman on Monday, and photograph all the signage I can. I .

See if says this is Private land. It is not private land.

NHS land is PUBLIC LAND

Should be a good opening defence Parking Scum say that I was on private land. I was NOT I was on public land

Joefranpar

The NTK states it is Private land, and everything I have read, says hospital grounds are private. Do you have any evidence to support your view, or is it another thing to toss in the pot? I cannot get through to the hospital today, so will try to get tomorrow.

Joefranpar

freeman hospital have not replied to the FOI coupon-mad suggested I ask for, so i have sent a follow up to them.
thoughts on the following please?
1) Keeper Liability The Notice to Keeper is not compliant with the POFA 2012

It is made all the more confusing for a keeper appellant because the original PCN claims the signage in the car park clearly states that it is for 'permit/authorised vehicles' and they did not gain the appropriate permit/authorisation to park, yet no indication towards the photographs of a cars registration number states exactly where they were taken. If these photographs were taken at the main entrance to an area which contains 'permit/authorised vehicles', 'pay and display, and free 20 minutes parking in a drop off bay, then it is unclear as to which contravention is alleged. On the Notice To Keeper it only states that the car was in the grounds 30 minutes.
It is evident, that when entering the site in question, there are multiple routes for a vehicle to take. As the operator is issuing a parking charge on the basis that the driver of the appellant’s vehicle did not comply with the terms and conditions of the car park, the burden of proof rests with the operator in showing that a contravention of the terms and conditions took place.
This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. The Operator has the technology to record car registrations, to collect and record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''9(2) the notice must—
(b) Inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c) Describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d) Specify the total amount of those parking charges that are unpaid...'
NTK is not compliant, for example re this requirement:
The NTK specifically fails on all counts.

The registered keeper is submitting this appeal and Parking Eye do not have the identity of the driver, who is not the registered keeper.

As Parking Eye has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver.

A) - The unpaid parking charge that should have been requested (paragraph 9(1) of the Act) is that which was unpaid on the day before the Notice to Keeper was issued. This can only be the purportedly unpaid parking tariff and not £70 which had not been requested and which there was no facility to pay on the day before the Notice to Keeper was issued. Consequently £70 cannot be considered unpaid for the purposes of the Act. It clearly demonstrates that Parking Eye has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered keeper asked to pay the purportedly unpaid tariff.

– Parking Eye have failed to notify the registered keeper why the parking charge is due as is required by the Act. Their generic template PCN indicates that the vehicle supposedly was not authorised at all. The Act states that the reason for the charge is made clear and again Parking Eye have failed to comply with the requirements of the Act and consequently cannot rely on its provisions.

2) The time in car park is noted to be 0 hours 30 minutes and I feel that this constitutes a reasonable grace period to allow an informed decision as whether to park or to pick a patient up and continue out of the car park without entering into any parking agreement, indeed without the driver even parking or exiting the car. It follows that it is possible for a driver to approach one of the car parks and decide not to park, travel to the free parking drop off zone, and drive out, making a total time of 30 minutes acceptable. 07/03/2016 Case B7FC00H1 – Parking Eye v Mrs B, before District Judge McKinnell at St Albans. I would put PE to strict proof that the car in this material case was not in the drop off/pick up area for 20 minutes and driving around the site for the other ten minutes, which does not involve any pay and display bay and falls well within the two Grace Periods set as mandatory, in the BPA Code of Practice:

3) 13 Grace periods
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.

So, a few minutes is expressly allowed by the BPA rules, to drive in and around to find the right place to pick someone up, then 20 minutes allowed for drop off/pick up (as defined by the signs within that section) then AT LEAST another ten minutes to leave, easily exceeds the 30 minutes between PE's two photos which fail to evidence where the car actually is at both points anyway, within a sprawling NHS site.
3) No standing or authority to pursue charges nor form contracts with drivers
The Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Parking Eye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Parking Eye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Parking Eye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Parking Eye.

4) The ANPR system is unreliable nor accurate.

Parking Eye's evidence shows no parking time, merely photos of a 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 and display 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 synchronized to the pay and display machine clock nor even to relate to the same parking event.

As keeper I cannot discount that the driver may have driven in, realised it was pay and display then driven out. The BPA even mention this as an inherent problem with ANPR on their website;
https://www.britishparking.co.uk/How-does-ANPR-work


The BPA's view is: 'As with all new technology, there are issues associated with its use:
Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'


5) The charge was not based upon a GPEOL and there is no justification for breach of the duty to allow grace periods

This case is an unfair penalty and differs from the 'Beavis v Parking Eye' judgment as that was a pay and display carpark.

The charge is for an alleged (but denied) breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified that this non-landowning third party can claim a sum in excess of any damages. However, no such GPEOL or justification can apply here.

Unlike in Beavis, it is confidently argued that this charge (£70) is hugely disproportionate to any alleged unpaid tariff.

The charge is not a genuine pre estimate of loss and as this was a paid parking site that can be distinguished from Parking Eye v Beavis.

If Parking Eye believe that inadequate payment was made (which their PCN fails to make clear and which is denied by the driver) then their demand should be for any unpaid tariff as that would be their only loss.
£70 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If Parking Eye believes their charge is a genuine pre-estimate of their loss it is demanded they produce a detailed and itemised breakdown of how this has been calculated.

In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £40 on days 1 to 14, then £70 thereafter. This is clearly an arbitrary sum invented by the Respondent.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.


5) Unclear, inadequate and non-compliant signage

Due to their high position, overall small size, being unlit and the barely legible size of the small print, the signs in the car park are impossible to read whilst driving along the access roads. As the driver did not at any time exit the vehicle, or even enter a parking bay, it would have been impossible for the driver to have read, and agreed with any terms or conditions displayed on them.


6) Without a contract

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award Parking Eye Limited could seek would be damages. As there was no damage to the car park there was no loss to them or the landowner at all and therefore there should be no charge.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Coupon-mad

Needed a re-hash but a good start. I have put signage first - I have added the bit about the entrance signs into the signage part instead.

Try this but wait to see if anyone else adds anything. If not, submit this as a PDF attached under 'other' on the POPLA website, without saying who was driving. You do have to fill your details in as the 'motorist' for some reason but that's always fine for a keeper.




Background - no contravention
I am the registered keeper and my appeal is regarding an incident where there was no contravention and no use of the permit/pay and display car park. The driver was picking up a passenger for which 20 minutes parking is allowed - and the other few minutes are certainly covered by the mandatory grace period for the time spent driving through the sprawling NHS site past several cameras, then reading the signs and stopping as allowed, to pick up a patient who was being discharged from the Hospital.

This is my appeal:

1. Unclear, inadequate mixed signage at the entrance and throughout the site

At the entrance one is met by a multitude of signs and I put this operator to strict proof of how the entrance to the hospital appears from a car. There is nothing about VRNs being captured by ANPR at the point of entry; nothing about how the ANPR data will be used to add unknown 'overstay' time to allowed parking time. So a person arriving to drive through the site to reach the drop off/pick up area near a ward, is only informed that they are allowed 20 minutes free parking.

Drivers are reasonably entitled to rely upon that licence to park and the driver in this case was totally unaware that, in fact, secret cameras add up the total time on site instead and breach the BPA rules on Grace Periods, in doing so.

Due to their high position and the barely legible size of the small print, the ParkingEye signs (among all the Hospital Outpatient/Inpatient and multiple ward and treatment centre signs and directions within the site) are impossible to read whilst driving along the access roads. The driver did not at any time exit the vehicle nor even enter a parking bay, nor did they use the permit bays or pay & display bays so the PCN is incorrect in this regard. No contravention of a sign occurred, let alone any agreed contract to pay anything, because the driver merely used the right to pick up a patient (free 20 minutes allowed which was the only sign legible at the point of parking).

It is made all the more confusing for a keeper appellant such as myself, because the original PCN claims the signage in the car park states that it is for 'permit/authorised vehicles' and the driver apparently 'did not gain the appropriate permit/authorisation to park'. That is incorrect. There are multiple car parks - lots of differing signs and different restrictions for each area - certainly not all requiring any permit or payment and the driver did not park in one of those areas.


2. No indication where the photos were taken - at the entrance or within the site - ParkingEye have several cameras here in different places.

No evidence has been shown to prove where the photos were taken, nor even that the 'in' and 'out' images are from corresponding cameras. This is not speculation; this exact kind of misleading evidence was submitted by ParkingEye to a court last month regarding a Hospital site with multiple cameras, car parks and routes:

07/03/2016 Case B7FC00H1 – Parking Eye v Mrs B, before District Judge McKinnell at St Albans

http://parking-prankster.blogspot.co.uk/2016/03/parkingeye-lose-in-court-accuse-drivers.html

ParkingEye's own evidence in that similar case was essentially worthless. Their pictures showed the vehicle entering the Patient & Visitor Car Park but leaving a completely different car park. I submit this may be the case here and I put ParkingEye to strict proof of which camera the 'in' and 'out' photos were taken from, including map evidence showing the markings on the road and/or visible barriers or buildings in the photographs, to prove their assertion.

I also require their complete listing of every time my vehicle was captured that day, since I contend the car was driving around - and even circled round and revisited and re-read the entrance signs to locate the drop-off areato pick up the patient, according to the driver.

The vehicle was not parked in the pay & display area nor any permit bay, at all. ParkingEye need to prove this was the case or their PCN is not properly given.

If these photographs were taken at the main entrance to an area which contains 'permit/authorised vehicles', 'pay and display, and free 20 minutes parking in a drop off bay, then it is unclear as to which contravention is alleged. On the Notice To Keeper it only states that the car was in the grounds 30 minutes and the two photos do not show where the timings were captured.

It is evident, that when entering the site in question, there are multiple routes for a vehicle to take. As the operator is issuing a parking charge on the basis that the driver of the appellant’s vehicle did not comply with the terms and conditions of a particular car park (one of several on site) the burden of proof rests with the operator in showing that a contravention of the terms and conditions in a particualr car park took place (i.e. that the car actually parked there in a place where permits or P&D was a requirement).

The BPA even mention this as an inherent problem with ANPR on their website:

https://www.britishparking.co.uk/How-does-ANPR-work

The BPA's view is:

'As with all new technology, there are issues associated with its use...Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'



3. The operator has not allowed for the BPA's mandatory Grace Periods

The time in car park is noted to be 0 hours 30 minutes and it is not disputed (and is shown on the applicable sign) that 20 minutes actual parking time is allowed to drop off/pick up patients. It follows that it is possible for a driver to approach one of the car parks, read the signs and decide not to park as they then notice an arrow indicating the free parking drop off zone instead. They then go to that separate car park area - knowing they then have up to 20 minutes free parking allowed - pick up a patient being discharged then drive along and back round and out.

This makes a total time of 30 minutes perfectly reasonable and falls well within the two Grace Periods set as mandatory, in the BPA Code of Practice:

13 Grace periods
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.

So, several minutes are mandatory, to drive in and around to read signage and find the right place to pick someone up, then 20 minutes allowed for drop off/pick up (as defined by the signs within that section) then AT LEAST another ten minutes to leave. It cannot be disputed that this easily exceeds the 30 minutes between the two photos which fail to evidence where the car actually is at both points anyway, within a sprawling NHS site.



4. No standing or authority from the landowner to enforce this charge/this contravention

The Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Parking Eye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name.

I suggest that ParkingEye are certainly not empowered by the NHS Trust to sue patients and visitors for correctly using the 20 minute drop off/pick up allowance.

In addition, Section 7.3 states:

“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.''

I put ParkingEye to strict proof of compliance with all of the above requirements and specifically relating to drop off/pick up activity, not just a general redacted contract about the pay and display/permit area which was not used.



5. No legitimate interest - this charge is not like that in the Beavis car park/contract.

This case is an unfair, unenforceable penalty and differs from the 'ParkingEye v Beavis' judgment in every single fact, from signage to the rationale/justification of the charge.

The Beavis decision is not a silver bullet, not for any operator and not for ParkingEye. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule IN THAT CASE ONLY.

It may be useful to refer to but it cannot be twisted to strike out the majority of private parking ticket appeals.

The unusual contractual licence to park that was offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from anything considered by the courts before.

As regards the Beavis case, it was made plain that in more complex contracts, an agent or landowner must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'.

There is no commercial justification for an agent of an NHS Trust to use images cherry-picked from various cameras as a car traverses a site, to profit by disproportionately fining a visitor quite correctly relying upon the clear offer of 20 minutes parking (plus BPA grace periods).

Not only that, this sort of fine imposed in a Hospital car park disregards the NHS 'Car Parking Principles' first put forward by the Department for Health in 2014 and subsequently updated and established as clear Government Guidance, in 2015:

https://www.gov.uk/government/publications/nhs-car-parking-management-htm-07-03

https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

''Charges should be reasonable for the area.''

''Trusts should consider installing ‘pay on exit’ or similar schemes so that drivers pay only for the time that they have used. Additional charges should only be imposed where reasonable and should be waived when overstaying is beyond the driver’s control.''

''Details of charges, concessions and additional charges should be well publicised including at car park entrances, wherever payment is made and inside the hospital. They should also be included on the hospital website and on patient letters and forms, where appropriate.''

''NHS trusts should publish:

- their parking policy
- their implementation of the NHS car parking principles
- financial information relating to their car parking
- summarised complaint information on car parking and actions taken in response''


''Contracted-out car parking
NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.

NHS organisations should act against rogue contractors in line with the relevant codes of practice where applicable.

Contracts should not be let on any basis that incentivises additional charges.''

''Reasonable implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (eg commuters), or who persistently flout parking regulations (eg blocking entrances). A period of grace should normally be applied before a parking charge notice is issued.''

None of the above was the case with this NHS Trust/ParkingEye. I would argue that this makes this charge unreasonable and unconscionable in the extreme.

The ParkingEye v Beavis judgment makes clear that the Courts would consider the disproportionate charge in this case to be the very essence of 'unconscionable' due to the circumstances of the case. It is a clear penalty because it is just that, punitive, with no other compelling commercial rationale nor even unambiguous evidence to support its imposition.

In ParkingEye v Beavis at 32, it was made clear that a test has to be considered in every case and an interest will 'RARELY' extend beyond the usual penalty rule (Lord Dunedin's four tests):

''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the [...parking company...] in the enforcement of the primary obligation. The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Lord Mance at 152 added: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties [...] had every opportunity to appreciate what they were agreeing must at least be a relevant factor.’’

POPLA must consider the rationale and reasoning behind a parking charge in each case, as well as the signage, because the Beavis decision depended upon both.

If an operator fails to show both apply, then the ParkingEye v Beavis case CANNOT be applied and POPLA cannot just roll out a standard paragraph about it, every time. The penalty rule remains engaged and parking charges are not 'properly given' if they are merely punishing an alleged (denied) breach but remain unjustified by way of any other legitimate commercial interests.



6. Keeper Liability nor established - The Notice to Keeper is not compliant with the POFA 2012

The registered keeper is submitting this appeal and ParkingEye do not have the identity of the driver.

ParkingEye have failed to correctly and unambiguously notify the registered keeper why the parking charge is due, as is required by the Act. Their generic template PCN indicates that the vehicle supposedly was not authorised at all. The Act states that the reason for the charge must be included in a Notice.

ParkingEye have reported the contravention and the applicable signage wrongly and ambiguously because the original PCN claims the signage in the car park used states that it is for 'permit/authorised vehicles' (not true, wrong part of the site) and the driver apparently 'did not gain the appropriate permit/authorisation to park' (again denied, not a true contravention for a driver picking up a patient).

This operator has failed to comply with the following requirements of the Act and consequently cannot rely on its provisions for keeper liability:

''9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable.''

As ParkingEye has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act cited above, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver and there is no lawful way I can be held liable as registered keeper.



love and kisses

Joefranpar

Joefranpar

love and kisses? sounds good to me. heres hoping. thanks a million, coupon - mad and all.

Coupon-mad

Just added a few links from the Government best practice. Make sure that's in there.

Delete the love & kisses, that's our forum in-joke for parking firms who deserve more of a tongue stuck out!