PCN for Tower Road, Newquay

LeedsMat

Hi,

I've received a PCN (as keeper) from ParkingEye for the infamous Newquay car park. Background:

Date of parking event: Mon 17/10/2016
3 hours parking purchased from ticket machine.
ANPR photos show car arriving 9 minutes before the purchase time on the ticket, and leaving 5 minutes after the end of the end of the purchase time.
Date of issue on the PCN is Sat 29/10/2016 (although I didn't receive the PCN until 3/11/2016 so the issue date was likely fabricated).

I'm really looking for confirmation that the PCN, as a notice to keeper, was issued too late and I'm not mis-interpreting the allowed period specified in the POFA.
Am I right in thinking that the PCN would need to be delivered on or before Mon 31/10/2016, and that, with regard to the two working days for delivery rule, an issue date of Sat 29/10/2016 would mean that the PCN wouldn't arrive until Tue 01/11/2016? In fact, to reach me by 31/10/2016, the PCN would have to have been issued no later than Thur 27/10/2016.

The PCN contains all the usual POFA wording (ie it isn't one of the blank ones).

Am I correct in thinking the PCN is non-compliant or am I barking up the wrong tree?

Thanks in advance.

Castle

No you are correct, it's one day late; furthermore the PCN must also state the date of postage.

PE must allow a 10 minutes grace period on leaving, clearly they haven't in your case.

LeedsMat

Thanks for your prompt reply, Castle.

Coupon-mad

The PCN contains all the usual POFA wording (ie it isn't one of the blank ones).

Am I correct in thinking the PCN is non-compliant or am I barking up the wrong tree?

Seconded, the PCN could not have been considered to have been served in time because the POFA defines that the assumed date for service is two working days after posting. Even if they had posted it on the Saturday (which they did not because PE use Whistl or iMail batch-posting which sends mail days later, on a working day) then it would not have been deemed delivered on time. And Saturday isn't a working day so the earliest it was deemed to be posted was the Monday - i.e. too late (and we know they didn't even post it then due to when you actually received it).

PE should have used a non-POFA version and I would be emailing David Dunford at the DVLA to report them for saying a keeper is liable when they know the keeper cannot be. After all PE have a non-POFA version for that very purpose and have sent the wrong one, which is serious because the DVLA takes a very dim view of parking firms saying a keeper is liable when they cannot be.

BTW don't make too much of when it was actually received (opens it up for them to say 'prove it') whereas this complaint is much more about the definitions in the Schedule and the deemed dates of delivery. Facts direct from the statute.

david.dunford@dvla.gsi.gov.uk

I think I would also base your first appeal on that issue and breach of the mandatory BPA Grace Periods and not use the usual template:

ANPR photos show car arriving 9 minutes before the purchase time on the ticket, and leaving 5 minutes after the end of the end of the purchase time.

As long as you write as keeper, striking specifically about those dates and telling them you have reported them to Mr Dunford (deliberately name drop) at the DVLA for using a POFA version when you can't be held liable (quoting the POFA para 9) and secondly about Grace periods (quoting them too) I think you could see this off without POPLA being needed.

LeedsMat

Thanks very much for your response Coupon-mad, you've cleared up how I should proceed. I did wonder whether referring to POFA when it can't apply was acceptable, or even legal. I'll do as you advise, including reporting them to the DVLA.

LeedsMat

So unsurprisingly PE rejected my initial appeal, doubt they even read it, all I got was a standard template reply, no reason given for rejection.

I made a freedom of information request to the DVLA to find out when they requested my data. They sent the request on 28/10/2016 and received the data on the 29th. Would this not mean that when they requested the data it was already too late to send a POFA-compliant NTK, and thus a data protection breach? Is it worth informing the ICO?

I've put my draft POPLA appeal below, and would appreciate any help/comments. It's quite long! Thanks in advance.

POPLA APPEAL – code: xxxxx

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice ParkingEye issued against it. I contend I am not liable for the parking charge, based on the following grounds, which are explained further below:

1. Grace periods mandated by the British Parking Association (BPA) Code of Practice were not observed by ParkingEye.
2. No keeper liability, as the issue date of the Parking Charge Notice, as a Notice to Keeper, does not comply with Schedule 4 of the Protection of Freedoms Act 2012.
3. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.
4. ANPR Accuracy and Compliance.
5. The car park had unclear, non-obvious, non-BPA-compliant signage leading to the driver not being aware that a parking contract was being offered at the time.
6. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

1. Grace periods mandated by the British Parking Association (BPA) Code of Practice were not observed by ParkingEye

The BPA Code of Practice, with which ParkingEye must comply as a member of the BPA, indicates, in section 13, that parking operators must allow grace periods at the start and end of the period of parking before enforcement action can be taken. I include the relevant paragraphs from the Code of Practice here for your ease of reference:

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.

The following photo shows a copy of the ticket that was purchased for the parking period, showing a purchase time of 11.00am, and a purchase price of £3.80:

[Embedded photo of ticket]

The following photo shows the signage at Tower Road showing the tariffs for parking, indicating that the ticket is valid for 3 hours of parking, thus the end of the period of parking would be 14.00pm:

[Embedded photo of sign at Tower Road]

The ANPR photos on the PCN show an arrival time of 10.51am (9 minutes before the start of purchased period) and a departure time of 14.05pm (5 minutes after the end of the purchased period). The BPA Code of Practice considers that 10 minutes is a reasonable grace period for a motorist to leave the car park at the end of the parking contract (i.e. for the driver and passengers to enter their vehicle, manoeuvre out of the parking space and exit the car park). Given that more processes are involved in the period before a parking contract is formed (e.g. finding a space, locating the signage, and then reading and understanding the terms on the sign), it is reasonable to conclude that the grace period before the establishment of the parking contract must be at least as long (i.e. 10 minutes) as the grace period after the parking contract has ended.

For the parking event in question, the period between the recorded time of entry and the purchase of the ticket (9 minutes) and the period between the expiry of the ticket and the recorded time of departure (5 minutes) clearly fall within the acceptable grace periods specified in the BPA Code of Practice, and thus it can only be concluded that no additional parking charge applies.

2. No keeper liability, as the issue date of the Parking Charge Notice, as a Notice to Keeper, does not comply with Schedule 4 of the Protection of Freedoms Act 2012

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11, and 12. ParkingEye has failed to fulfil the conditions which state that an operator must have provided the keeper with a Notice to Keeper (NTK) in accordance with paragraph 9, which stipulates as mandatory, a set timeline and wording:

(4) The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

As the parking event occurred on Monday 17/10/2016, the NTK would only comply with POFA if received by me as the keeper on or before Monday 31/10/2016. The NTK sent to me was delivered by post, in which case two working days must be allowed for delivery; this means that the notice would have to have been posted on Thursday 27/10/2016 at the very latest for it to be received by Monday 31/10/2016. The intervening days Saturday 29/10/2016 and Sunday 30/10/2016, because they are not working days, cannot be counted as allowable for the purposes of delivery of the NTK, as specified by POFA. As the NTK clearly shows a purported issue date of Saturday 29/10/2016, it is obvious that this deadline was not met, and therefore ParkingEye has not complied with the applicable conditions of schedule 4 of the Protection of Freedoms Act. Strict compliance with POFA is required in order to establish keeper liability. Consequently there is no keeper liability.

The fact that ParkingEye issued an NTK claiming they have statutory rights, under POFA, to pursue the keeper, but then themselves not complying with the conditions required by POFA to be granted those rights, only leads me to believe that they issued the NTK in an attempt to fraudulently obtain money from me. This view is supported by the fact that ParkingEye has a template for their PCNs that excludes the usual POFA wording for cases where they have failed to comply with the POFA conditions, but chose not to use it for the PCN sent to me.

3. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

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

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

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

Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.”

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.
This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

“I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.”


4. ANPR Accuracy and Compliance

I require ParkingEye Ltd to 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 ParkingEye Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the operator was 'fundamentally flawed' as 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 Ltd in this case to show evidence to rebut this point: 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 this operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this operator to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:

21 Automatic number plate recognition (ANPR)
21.1 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 at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.

At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Code of Practice breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This operator is put to strict proof to the contrary.

5. The car park had unclear, non-obvious, non-BPA-compliant signage leading to the driver not being aware that a parking contract was being offered at the time

The signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. ParkingEye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract.

The following photograph shows the signage at the Tower Road car park, clearly demonstrating that the terms and conditions at the bottom of the sign are in such a small font size that that they are rendered illegible. I can only assume that this is a deliberate action on the part of ParkingEye to obfuscate the contract terms and mislead drivers:

[Embedded photo of sign at Tower Road again]

As a POPLA assessor has said previously in an adjudication:

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

Furthermore, the landmark case of ParkingEye v Beavis [2015] UKSC 67 establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges.

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

6. 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

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

Yours faithfully etc

Coupon-mad

I made a freedom of information request to the DVLA to find out when they requested my data. They sent the request on 28/10/2016 and received the data on the 29th. Would this not mean that when they requested the data it was already too late to send a POFA-compliant NTK, and thus a data protection breach? Is it worth informing the ICO?

Not to the ICO but to the DVLA, by email to Mr Dunford, as previously advised as it is not a DPA breach but a BPA CoP breach. Do that now as well as the POPLA appeal.

Re the POPLA appeal, I suggest this should see it off:

As the registered keeper, I wish to appeal. I contend I am not liable for the parking charge, based on the following grounds:

1) The two BPA 'Observation' and 'Grace' Periods either side of paid-for time were not properly applied.
2) The Landowner Contract must evidence the definition of the services - the Grace Period is believed to be 20 minutes.
3) The signs in this car park are not prominent, clear or legible before parking.
4) The signs fail to warn drivers of what the ANPR data will be used for, breach of the BPA CoP, the CRA & the CPUTRs.
5) No keeper liability, as the issue date of the Parking Charge Notice, as a Notice to Keeper, does not comply with Schedule 4 of the Protection of Freedoms Act 2012.
6) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.




1) The two BPA 'Observation' and 'Grace' Periods either side of paid-for time were 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 (my bold):

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go...
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.

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:

http://www.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.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules...''

The following photo shows a copy of the ticket that was purchased for the parking period, showing a purchase time of 11.00am, and a purchase price of £3.80:

[Embedded photo of ticket]

The following photo shows the signage at Tower Road showing the tariffs for parking, indicating that the ticket is valid for 3 hours of parking, thus the end of the period of parking would be 14.00pm:

[Embedded photo of sign at Tower Road]

The observation period (at the start)
The ANPR photos on the PCN show an arrival time of 10.51am (9 minutes before the start of parking) and a departure time of 14.05pm (5 minutes after the end).

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. For the parking event in question, the period between the recorded time of entry and the purchase of the ticket is just 9 minutes.

Tower Road is one of the busiest car parks in Newquay and this event was during the October half term for most UK schools.

Nine minutes is certainly allowable, given Kelvin Reynolds' defined 'observation time' and the nature of this car park. Time would have been taken just driving in, along the sand-strewn, stony and potholed roadway, no doubt in a queue, dodging groups of pedestrians carrying surfboards 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, grab beach paraphernalia, buggy, bags et al, look round for a machine and go to queue up to pay, finding the right coins before getting the ticket.

Perfectly reasonable, given the circumstances and location and time of year! How would it occur to any reasonable person standing at the machine that they had to pay for the time taken to get into the busy car park?

Obviously not - and not only does Kelvin Reynolds of the BPA agree, but the P&D machine system supports this timing because it is set not to the arrival time (which it could be if it was synchronised to the ANPR clock) but instead it is set to the time after the coins dropped into the machine. This is entirely in keeping with the law of contract: in simple terms, 'offer and acceptance = agreement'. The relevant authority for this view regarding a contract commencing in a private car park is the case of Thornton v Shoe Lane Parking [1971] 2 QB 163, where it was held that a parking contract in a paid-for car park begins when the coins enter the machine:

http://www.bailii.org/ew/cases/EWCA/Civ/1970/2.html

''He was committed at the very moment when he put his money into the machine. The contract was concluded at that time. It can be translated into offer and acceptance in this way: the offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot.''

The grace period (at the end)
It is indisputable from the evidence, that the driver left and drove onto the public highway at the exit, just five minutes after the time shown on the pay & display ticket. Since the BPA CoP allows a MINIMUM of ten minutes just to leave, there was no contravention.

Taking both BPA 'Observation' and 'Grace' Periods into account and considering the type and location of this busy beach car park, I contend that the PCN was not properly given.



2) The Landowner Contract must evidence the definition of the services - the Grace Period is believed to be 20 minutes.

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, this being key evidence to define what this operator is/is not authorised to do. Further, just because an agent is contracted to merely put some signs up and issue PCNs, it cannot be assumed that the agent is authorised to make contracts with visiting drivers and/or to enforce the charge in court in their own name.

Witness statements are not sound evidence of the above, especially as ParkingEye use copied/pre-signed, generic documents not identifying the case in hand, the VRN nor the site rules, operating hours, charges, exemptions etc.

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. I put this operator to strict proof, to demonstrate full compliance with Paragraph 7 of the BPA CoP, which defines the bare minimum mandatory requirements:

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.

Further, I reasonably believe that the Grace Period at this Newquay beach car park is likely to match the comparable site of Fistral beach site that ParkingEye used to ruin before their contract 'ended'. My evidence for believing that the landowner agreement is hiding a longer Grace Period is this article about that other car park, where it is stated that they allow a full 20 minutes before enforcement:

http://www.newquayvoice.co.uk/news/5/article/3428/

''Visiting vehicles have a 20-minute grace period when they enter and leave the car park before having to buy a ticket... This also applies to people who buy a ticket and exceed their time by 20 minutes from when they enter and leave the car park. [...] “If a driver decided to stay then for example if you take five minutes to buy the ticket they will have 15 minutes past their ticket deadline to leave the car park.''

A reasonable interpretation, since this operator uses template contracts and was operating at Tower Road at the same time as they used to operate at Fistral Beach down the road, is that this landowner contract also includes a 20 minute Grace Period and ParkingEye are put to strict proof to the contrary.





3) The signs in this car park are not prominent, clear or legible before parking

The BPA CoP requires that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. However, the signs in this car park were not sufficiently clear to give proper notice to the driver. I also contend that there was no agreement on the 'parking charge' because the signs in the car park are sparsely positioned, only at the periphery of the site/beach boundary.

Further, the tariffs are the only prominent sums drawn to a driver's attention when standing at the pay & display machine. I have seen no site map and if one is produced in evidence I contend that it is not an up-to-date record of the current lack of signage around all central bay areas. There are no signs at all along full runs of bays here so a driver can park and pay at the machine and see the tariffs but never learn of £100 risk.

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 brief and not a typical example. The Supreme Court tweeted that the decision related to that car park and those facts only:

http://imgur.com/a/AkMCN

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges. In fact the signs are overly wordy and cluttered, such that even the most circumspect driver would see the tariffs and honestly believe the highest charge for parking was merely a few pounds. It is also telling that the signs are headed 'Parking Tariffs' and not a more vague 'total stay tariff' that this operator is trying to use as an attempt to charge me £100 now. Which brings me to my next point:




4) The signs fail to warn drivers of what the ANPR data will be used for, breaching the BPA CoP and the CRA and the CPUTRs.

Paragraph 21.1 of the CoP advises operators that they may use ANPR camera technology to manage parking in private car parks, as long as they do this in a ''reasonable, consistent and transparent manner''. The CoP requires that signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

These signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside/at the site boundary. It is not stated that the cameras are not for security (as one would expect from a mere camera icon) but are there in order to calculate 'total stay' for the purpose of generating profit from PCNs.

In fact, any reasonable driver would believe that they are authorised to park and rely upon the time on the printed ticket. In circumstances where the terms of a notice are not negotiable (as with car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity in those terms, the rule of contra proferentem shall apply. This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: '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'.

and Paragraph 69: 'Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.'

I contend that the words 'total stay' conflict with the words 'parking tariffs' and the most favourable interpretation of that ambiguity is that the driver is paying a tariff to PARK.

The driver could never guess that they are paying a tariff that is somehow back-timed to include a secret timing when the clock started (unbeknown to drivers) from their arrival in moving traffic from the road. Are drivers here meant to be psychic and look at their watch as they drive off the road? If they are, then this must be transparently stated at the entrance and the P&D machine clocks must be set to start a period of parking from arrival, by linking the systems.

Withholding material information from a consumer regarding the 'time when the clock starts ticking' and the commercial purpose of the ANPR cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

http://www.legislation.gov.uk/uksi/2008/1277/contents/made

Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''




5) No keeper liability, as the issue date of the Parking Charge Notice, as a Notice to Keeper, does not comply with Schedule 4 of the Protection of Freedoms Act 2012.

Under the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met. ParkingEye has failed to fulfil the conditions which state that an operator must have provided the keeper with a Notice to Keeper (NTK) in accordance with paragraph 9:

''(4) The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given”...) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.''

As the parking event occurred on Monday 17/10/2016, the NTK would only comply with POFA if received by me on or before Monday 31/10/2016.

The NTK sent to me was delivered by post, in which case two working days must be allowed for delivery; this means that the notice would have to have been posted on Thursday 27/10/2016 at the very latest for it to be received by Monday 31/10/2016. The intervening days Saturday 29/10/2016 and Sunday 30/10/2016, because they are not working days, MUST be excluded for the purposes of delivery of the NTK, as specified by POFA.

As the NTK clearly shows a purported issue date of Saturday 29/10/2016, it is obvious that this deadline was not met, and therefore ParkingEye has not complied with the applicable conditions of schedule 4. I didn't receive the PCN until 3/11/2016 so the issue date was likely fabricated - but even if not, it was too late.

Further, I made a freedom of information request to the DVLA to find out when they requested my data. They sent the request on Friday 28/10/2016 and received the data on the 29th (not a working day). They then backdated the PCN to that date even though they cannot possibly have posted it until the following week, using their Whistl or iMail batch-posting 'working days' service.

Even the backdating of the NTK was futile because they were too late.

When they requested the data from the DVLA on the Friday it was already too late to send a POFA-compliant NTK, thus they have committed a serious breach of the BPA CoP by stating that keeper liability can apply when it cannot.

The fact that ParkingEye issued an NTK claiming they have statutory rights to pursue the keeper but then not complying with the conditions required by POFA, only leads me to believe that they issued the NTK in an attempt to fraudulently obtain money from me. This view is supported by the fact that ParkingEye has a template for their PCNs that excludes the usual POFA wording for cases where they have failed to comply with the POFA conditions, but chose not to use it for the PCN sent to me.

I will be reporting this serious breach - regarding claiming keeper liability exists in a case when it cannot - to the BPA and DVLA.

Strict compliance with POFA is required in order to establish keeper liability. Consequently there is no keeper liability.




6) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

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

Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.”

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA. This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

“I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.”

LeedsMat

Thanks Coupon-mad, I very much appreciate you taking the time and effort to do this, and at midnight too! Do you ever sleep?

I emailed David Dunford just over a week ago when I got the FOI request back, just waiting on a reply. I didn't bother complaining to the BPA, it seemed futile when its own board of directors includes ParkingEye's Mark Anfield, but will do so if you think it helps.

...Fistral beach site that ParkingEye used to ruin before their contract 'ended'.

A freudian slip or intentional? Whatever, I like it so think I'll keep it in.

Thanks again.

Umkomaas

Thanks Coupon-mad, I very much appreciate you taking the time and effort to do this, and at midnight too! Do you ever sleep?

Midnight? CM's only doing her warm-up exercises at that time! :rotfl:

LeedsMat

Seems the DVLA are entirely unconcerned that parking operators are ignoring ATA Codes of Practice, abusing POFA and breaching their KADOE contract. Here's the reply I got to my complaint:

Thank you for your recent correspondence to David Dunford. I have been asked to reply on his behalf.

The Protection of Freedoms Act 2012 states ‘A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of subparagraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales’.

DVLA would be unable to comment on whether a notice was delivered within the relevant timescales.

If you have any concerns there are robust safeguards in place to help ensure that motorists are treated fairly when any parking charge is pursued. Vehicle keeper information is disclosed only to companies that are members of an appropriate Accredited Trade Association (ATA).

The company in question, ParkingEye Ltd, is a member of the British Parking Association (BPA) which is an Accredited Trade Association for the parking industry. The BPA’s code of practice is published on its website at [link] under the heading “Approved Operators Scheme”. If a member of this scheme does not comply with the code of practice, it may be suspended or expelled, during which time no data will be provided to it by the DVLA.

While seeking to ensure that vehicle keeper data is released only in appropriate circumstances, it is not a matter for the Agency to decide on the merits of individual cases. Disputes over the circumstances leading to an incident are matters for the parties concerned.

If you feel that any of the practices used by the company do not comply with the BPA’s code of practice, you may wish to contact the BPA at Stuart House, 41- 43 Perrymount Road, Haywards Heath, RH16 3BN.

I trust I have explained matters but, if you remain unhappy with the service you have received, you can write to our Complaints Team and I have provided a link to our complaints procedure for your reference. [link]

Not sure why "DVLA would be unable to comment on whether a notice was delivered within the relevant timescales", when I pointed out in detail and provided the evidence for how it couldn't have been. In fact the whole reply just looks like (and probably is) a random collection of copied and pasted template platitudes. "Disputes over the circumstances leading to an incident are matters for the parties concerned" is probably the worst example of responsibility-avoidance I've ever seen.

LeedsMat

And the reply from the BPA was even worse. My complaint:

I am writing to lodge a formal complaint about the private parking company ParkingEye. I received a Parking Charge Notice from them, as a Notice to Keeper, for an alleged overstay in the Tower Road car park in Newquay. The PCN was issued unjustifiably as:

• The PCN claims keeper liability under the Protection of Freedoms Act 2012, but it was issued too late to be received within the 14 days from the date of the alleged parking infraction, required by POFA for Notice to Keepers.
  
• The overstay was within the grace periods allowed by the BPA’s Code of Practice.

I have attached the PCN and the wording of the appeals I sent to ParkingEye and POPLA for your reference, but in summary:

• Ticket purchased at 11.00 am for 3 hours parking.
  
• ANPR photos show arrival time of 10.51am and departure time of 14.05pm, both clearly within the grace periods defined in the BPA’s Code of Practice.
  
• Date of parking event was Monday 17/10/2016.
  
• Date of issue on the PCN was Saturday 29/10/2016, too late for it to be received within the 14 day timeframe as required under POFA 2012, taking into account two working days for delivery. The PCN would have to have been posted on or before Thursday 27/10/2016 for it to be received in time. In fact, the PCN was not received until Thursday 3/11/2016 so it clearly wasn’t posted on the 29th, especially as this was a non-working day.

I made a Freedom of Information request to ascertain when ParkingEye requested and received my data from the DVLA. The request was made on 28/10/2016 and they received the data on 29/10/2016. This means that when they made the request, it was already too late for them to serve a Notice to Keeper that would meet the POFA deadline.

I understand that in order for private parking companies to obtain keeper details from the DVLA, that they must have “reasonable cause”, under their contract with the DVLA. In my case, they did not have reasonable cause, because they left it too late to issue a POFA-compliant PCN and because the period of parking was within the allowed grace periods. Note that ParkingEye has a template for their PCNs that excludes the usual POFA wording for cases where they have failed to comply with the POFA conditions, but chose not to use it for the PCN sent to me. Claiming keeper liability exists in a case when it cannot is a serious breach of the BPA’s Code of Practice. Therefore I can only conclude that ParkingEye are acting fraudulently by trying to extort money from me when I am not liable.

It seems ParkingEye, along with many other private parking companies, are abusing their access to keeper details, and are sending out these Parking Charge Notices when vehicle keepers are not actually liable; they are simply “chancing their arm” in the hope that keepers will just pay up rather than fight it, out of ignorance or a lack of time. I’ve spent an inordinate number of hours researching the issues around this matter in order to mount appeals to ParkingEye and POPLA. I am struggling to see how these extortionists are allowed to conduct business in this way with impunity.

I am sure the BPA is aware that their members are behaving in such a manner, and that mine is not the first complaint you have received about them; there are many people on internet forums trying to get help to fight these illegal charges. It is fully within the BPA’s power to prevent these companies behaving in this manner, particularly for notorious and repeat offenders such as ParkingEye, simply by revoking their membership of the BPA, which will also have the effect of preventing them from accessing keeper details on the DVLA database.

I look forward to your reply, detailing what action you are going to take against ParkingEye, including the number of sanction points you are going to impose on them for the breaches of the BPA’s Code of Practice they have committed in this case. I would suggest, at a minimum, the following contraventions have been committed and sanction points should be applied appropriately:

5.11 Significant failure to abide by the terms of the BPA Code of Conduct

4.9 Failure to have a grace period policy.

4.13 Use of DVLA information outside of the specified timescale.

If you choose not to impose sanction points, please explain in detail why not and how the contraventions indicated above have not been committed in my case.

And the BPA's reply:

Thank you for your email.

We note you advise you did not receive a copy of the parking charge notice until the 3/11/2016.

We have contacted the operator and who has confirmed the charge was due to be delivered within the timescale required when using the legislation therefore we cannot advise there to be a breach of the Code. Unfortunately unless recorded delivery is used we are unable to ascertain when mail is received by either party and cannot get into a dispute on this point.

If you have any further queries please contact the operator directly. My apologies we cannot be of further assistance.

I especially like "the operator... has confirmed the charge was due to be delivered within the timescale required". No, it wasn't, the proof is on the PCN. And no mention of grace period violations.

I wasn't expecting much but the BPA's failure to address my points or look at my evidence, and mindless acceptance of the untruths of criminals has left me speechless.

Who do I complain to about the BPA?