ParkingEye initial appeal submission

Coupon-mad

I would remove point #2 because I've spotted this is an overstay after a free parking licence (just like the Beavis case) so the arguments in #2 make no sense! Not here. That argument is for a tariff car park, not a free one.

And the template appeal point about 'no landowner authority' as linked in post #3 of he NEWBIES thread, includes #7.3 of the BPA Code of Practice quoted, which I feel would be a useful addition.

Three questions:

- how long was the overstay? If under 20 minutes, add a nice long section on grace periods including a link to Kelvin Reynolds' BPA article which makes it clear there are two periods allowed (one before and one after the parking licence). And bang on about the car park being very busy, pre-Christmas and all that jazz.

- was the PCN a POFA one talking about 'keeper liability' after 29 days?

- have you tried a complaint to the retail Store manager?

PCN_advice_needed

Thanks for the comments, I'll adjust accordingly. Given there is no actual loss in terms of revenue is there an argument that £100 reduced to £60 is still a massive penalty?

The overstay was 24 minutes so I think the grace period argument may fail - would it still be worth including purely for verbosity ?

And the PCN (via post) appears to be the PE honed version including the "keeper liability after 29 days" element.

I was sat in a coffee shop on site with colleagues/customers (not the best!) and I only have a bank statement to show I was there. Still worth including ?

Umkomaas

Given there is no actual loss in terms of revenue is there an argument that £100 reduced to £60 is still a massive penalty?

Nope - the Supreme Court put paid to that.

The overstay was 24 minutes so I think the grace period argument may fail - would it still be worth including purely for verbosity ?

Not for the sake of verbosity, especially as the basic grace periods seem to have been breached - but if you are to use it you'll need to make a great play on Christmas rush. Be careful not to identify the driver.

I was sat in a coffee shop on site with colleagues/customers (not the best!) and I only have a bank statement to show I was there. Still worth including ?

POPLA won't be interested. You should have sent that to PE with your initial appeal; they do cancel on the basis of being a genuine customer.

Have you complained to the coffee shop yet, and ask them to intervene?

Coupon-mad

I would use it and Kelvin Reynolds (BPA) article about each grace period differing 'not just due to disability'

...make a great play of pre-Christmas queues in the car park, both to find a parking space and then afterwards, to leave out onto the road.

PCN_advice_needed

I'll hunt out the Kelvin Reynolds article, thanks both.

And Coupon-Mad - when you say "I would use it" do you mean the GPEOL argument ? Charging £100 for an overstay in a free car implies penalty, and Beavis I thought was confined to a specific instance in a charging car park with very clear signage.

Coupon-mad

Nope, sorry for being unclear, not GPEOL (dead as a dodo) - I meant the grace periods argument.

I would use it by banging on about Christmas queues and using Kelvin's lovely article to back up your argument that there are two periods to be allowed, one before and one after parking time. One is defined in the BPA CoP as a MINIMUM (not maximum) ten minutes to leave after parking, so at Christmas, clearly 14 minutes (just 4 over the MINIMUM) would not be unreasonable due to the queues of cars waiting to leave with their purchases.

Then if it took TEN minutes to find a parking space on arrival, that too is covered as an 'observation period' as confirmed by Kelvin who said this period might be 5 - 10 minutes OR MORE and would be affected by facts & circumstances - e.g. Christmas - not just depending upon disability.

Quote him by searching this forum (don't Google for it). You will find POPLA appeals already using this argument recently.

PCN_advice_needed

Latest draft - 8 pages including pictures - is below. I've also traced the manager of the coffee shop on site and will be speaking to them today. I'm mulling including a bit about ensuring - based on some research, and as a point for PE to prove/disprove - that PE provide any or all photographs of the vehicle on the day to ensure any times are correctly calculated. Helpful / adds to length / anything else?

Any further comments ? I'll submit this on day 27 from the receipt of the PE email pointing me at POPLA.

--draft
POPLA Ref <popla>
Parking Eye Parking Charge Notice no <pcn>

A notice to keeper was issued <date> and received by me, the registered keeper of <registration> for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at <location>. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) Initial appeal refused as a matter of course without any substantive effort to reply
2) Misleading and unclear signage
3) Grace periods unclear and/or not properly applied
4) No landowner contract nor legal standing to form contracts or charge drivers
5) Photo evidence appears doctored
6) Untrustworthiness of camera system


1) The initial appeal lodged with ParkingEye on <initial appeal date> included a request for information, including a geographical address, about the landowner or business on the site in order to lodge a complaint.

No information was supplied as part of the appeal response, and the appeal response itself appears to be a pro-forma refusal. Were the ParkingEye appeal process anything other than a process by which to appear compliant with BPA guidelines then that information would have been provided in good faith as a matter of course. The fact that no information which was requested has been provided indicates that the ParkingEye appeal process is perfunctory and essentially useless.

2) The alleged breach, according to Parking Eye, is in contravention of terms and conditions “clearly displayed at the entrance to and throughout the car park”. It would however appear from perusing Google Earth images (the only option available to the appellant at time of appeal) that the one single small sign at the entrance could not be read fully and properly without stopping, and it is also possible to park in a bay without coming close to any other sign. Parking Eye are required to show evidence to the contrary.

The picture of the sign at the entrance, collected from Google Earth, shows a small sign:

<picture of entrance>

The closest sign to the entrance which appears to have any mention of ParkingEye or any charge shown in the image below:

<picture of closest sign>

It can be just be seen, on the right behind the red car, approximately 7 clear parking spaces from the hatched area surrounding the two disabled parking spaces in the right foreground. Due to the distance and the orientation of the sign, it is therefore possible to park, enter a store and not be able to see any clear signage which complies with BPA requirements.

<link to legislation>

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.

It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board.!In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:-

<link to Spureme Court tweet>

As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

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

...and the same chart is reproduced here:-
<link to eBay sign guide>

''When designing an outdoor sign for your business keep in mind the readability of the letters.!Letters always look smaller when mounted high onto an outdoor wall''.! ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''!

Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'.

I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up.

Separately, I can find no trace of a decided planning application relating to East Point Retail Park for the ParkingEye signage and cameras (the only three relevant results found searching the Nottingham City Planning Application Web site relate to PoundLand, Aldi and site totem sign itself – not ParkingEye. The only decided planning applications found relate to signage for the park or individual shops). Assuming that indeed no planning application was submitted or approved, then the signs hold no validity even were they properly sized, properly legible and properly placed.

In addition, 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 the car park signage failed to 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 on their own timekeeping. 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.'

The driver could never guess that they are responsible for taking into account a period 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 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':

<link to legislation>

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.''

3) Grace periods
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.

The observation period (at the start)
The ANPR photos on the PCN show an arrival time of 12:50:05 and a departure time of 15:14:38!– an alleged overstay of 24 minutes.

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
East Point Retail Park is a busy location which appears to have a popular low cost supermarket, a low cost general store, a toy store, a pet store and a coffee shop. Given the date (less than a month before Christmas) and the popular nature of the shops it is not inconceivable that the car park would be very busy.

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

Perfectly reasonable, given the circumstances and location and time of year! How would it occur to any reasonable person intending to park at this location that they might need to take into account the time taken to get into the busy car park?!

Obviously not.

The grace period (at the end)
The evidence provided (and refer to the comments relating to doctored photographs and unknown camera locations), purports to show that the vehicle arrived at 12:50:05, and left at 15:14:38 on the same day.

The same arguments relating to difficulty in arriving are made as to the difficulty of leaving the car park at the end of any stay.

Given that no evidence has been provided as to the trustworthiness of the timing system used to generate the date stamps attached to the photographs (please also see points relating to both these issues below) 24 minutes is perfectly within scope of both the MINIMUM grace periods and potential error in time recording.

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

4) 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 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 Code of Practice 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

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

I would challenge Parking Eye to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge Parking Eye that they possess the technology to generate these precise types of photographs, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

In addition, the photographs show LR53ZTO on a road with no significant markings other than a single piece of white centreline marking in the image where the front registration plate is shown and what appears to be a give way marking in the image where the rear registration plate is shown. As there is no marking on the photographs to indicate which specific camera took the photograph, and no other distinguishing features in the feature other than LR53ZTO, the distinct possibility that the photographs were taken of the vehicle when it was elsewhere and used in this instance cannot be dismissed. I again would challenge ParkingEye to prove the photographs as provided to me are indeed genuine.

6) Untrustworthiness of camera system.
The ANPR system is unreliable!and neither synchronised nor accurate. The BPA code of practice 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.”

Parking Eye fail to operate the system!in a ‘reasonable, consistent and transparent manner’. As Parking Eye place signs too high to see on arrival, there is no opportunity for drivers in moving traffic at the entrance to be ‘informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for’.

Parking Eye fails to clearly inform drivers!about the cameras and what the data will be used for and how it will be used and stored. There is!no evidence!that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to!strict proof!of full ANPR compliance.

In addition I!question the!entire reliability of the system. In the event that Parking Eye issue properly stamped and dated court papers the following should be requested and required:

Parking Eye must 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 a vehicle entering and exiting at specific times. It is vital that this!Operator must produce evidence!in response and explain to POPLA/Court how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the!court loss in Parking Eye v Fox-Jones!on 8 Nov 2013. That case was dismissed when the judge said the!evidence from Parking Eye was fundamentally flawed!because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records,! Parking Eye is required to show evidence to rebut the following assertion. It is contended that in the case of a 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 a communications system 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. The contention is that this ANPR “evidence” from the cameras in this car park is just as!unreliable and unsynchronised!as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos,!Parking Eye is put to strict proof!to the contrary and to show how these camera timings are synchronised.

As well as being unreliable,!this is a non-compliant ANPR system being merely a secret high-up spy camera – far from ‘transparent’ – unreasonably ‘farming’ the data from moving vehicles at the entrance & exit and!neither ‘managing, enforcing nor controlling parking’!since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all. This Operator!does not!show!the parking event transparently and truthfully.


I therefore request that POPLA uphold my appeal and cancel this PCN.

Coupon-mad

I would remove #6 as that is really old and the Fox-Jones case was never proven, let alone supported by any claim number. And you already cover ANPR related stuff in your other points, much better.

The only other thing is that point #4 needs 'no landowner authority' in the heading, not just BPA CoP.

PCN_advice_needed

Thanks for those - I'll tweak the document as indicated.

One thing - I found an appeals flowchart which says that the Notice of Rejection "must contain the POPLA appeal form and guidance notes". I'll assume that a link to the POPLA web site with a reference satisfies (1) but should the guidance notes have been provided as well, after all it was sent via email...

PCN_advice_needed

Last revision - planning to submit today or Monday. Appeal rejection arrived on 3rd Jan, so I think I'm right in thinking I submit as close to the deadline as possible (i.e. 31st) but today shouldn't make too much of a difference?

With pictures, I get to 7 pages total which hopefully should be long enough to bore the most conscientious reader to sleep.

----
POPLA Ref <ref>
Parking Eye Parking Charge Notice no <ref>

A notice to keeper was issued on <date> and received by me, the registered keeper of <reg> for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at <location>. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) Initial appeal refused as a matter of course without any substantive effort to reply
2) Misleading and unclear signage
3) Grace periods unclear and/or not properly applied
4) No landowner authority nor legal standing to form contracts or charge drivers
5) Photo evidence appears doctored

1) The initial appeal lodged with ParkingEye on <date> included a request for information, including a geographical address, about the landowner or business on the site in order to lodge a complaint.

None of the requested information was supplied as part of the appeal response, and the appeal response itself appears to be a pro-forma refusal. Were the ParkingEye appeal process anything other than a process by which to appear compliant with BPA guidelines then that information would have been provided in good faith as a matter of course. The fact that it has not been provided indicates that the ParkingEye appeal process is perfunctory and essentially useless.

2) The alleged breach, according to Parking Eye, is in contravention of terms and conditions “clearly displayed at the entrance to and throughout the car park”. It would however appear from perusing Google Earth images (the only option available to the appellant at time of appeal) that the one single small sign at the entrance could not be read fully and properly without stopping, and it is also possible to park in a bay without coming close to any other sign. Parking Eye are required to show evidence to the contrary.

The picture of the sign at the entrance, collected from Google Earth, shows a small sign:

<image of entry sign>

The closest sign to the entrance which appears to have any mention of ParkingEye or any charge shown in the image below:

<image of parking spots with closest sign>

It can be just be seen, on the right behind the red car, approximately 7 clear parking spaces from the hatched area surrounding the two disabled parking spaces in the right foreground. Due to the distance and the orientation of the sign, it is therefore possible to park, enter a store and not be able to see any clear signage which complies with BPA requirements.

In comparison a photograph of a car park “controlled” by a different operator is show below, with the operators’ signs circled in red. Note that there are only 3 (three) parking bays between signs and this frequency of signage is repeated throughout the car park. It is not possible, in this car park, to be out of sight of a sign whereas the <location of alleged infringement> it is certainly possible.

<image from different car park with much more frequent signs>

<link to legislation>

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.

It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board.!In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:-

<link to Supreme court Beavis tweet>

As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
<amazon sign link>

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

...and the same chart is reproduced here:-
<ebay sign link>

''When designing an outdoor sign for your business keep in mind the readability of the letters.!Letters always look smaller when mounted high onto an outdoor wall''.! ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''!

Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'.

I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up.

Separately, I can find no trace of a decided planning application relating to <parking location> for the ParkingEye signage and cameras (the only three relevant results found searching the <local authority> relate to <non-PE signs> – not ParkingEye. The only decided planning applications found relate to signage for the park or individual shops). Assuming that indeed no planning application was submitted or approved, then the signs hold no validity even were they properly sized, properly legible and properly placed.

In addition, 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 the car park signage failed to 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 on their own timekeeping. 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.'

The driver could never guess that they are responsible for taking into account a period 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 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':

<another link to legislation>

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.''

3) Grace periods
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:

<BPA Reynolds article link>

Good car parking practice includes ‘grace’ periods
“An!observation period!is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that!there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply!with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes!depending on various factors, not limited to disability.”

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

The observation period (at the start)
The ANPR photos on the PCN show an arrival time of <arrival time> and a departure time of <departure time> – an alleged overstay of 24 minutes.

The BPA (Kelvin!Reynolds!is the Director of Policy & Public Affairs) is on record as shown above, as saying that the 'observation period' at the start might take one person five minutes, but another person 10 minutes, depending on various factors”.
<The parking location> is a busy location which appears to have a popular l<set of shops>. Given the date (less than a month before Christmas) and the popular nature of the shops it is not inconceivable that the car park would be very busy.

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

Perfectly reasonable, given the circumstances and location and time of year! How would it occur to any reasonable person intending to park at this location that they might need to take into account the time taken to get into the busy car park?!

Obviously not.

The grace period (at the end)
The evidence provided (and refer to the comments relating to doctored photographs and unknown camera locations), purports to show that the vehicle arrived at <arrival time>, and left at <departure time> on the same day.

The same arguments relating to difficulty in arriving are made as to the difficulty of leaving the car park at the end of any stay.

Given that no evidence has been provided as to the trustworthiness of the timing system used to generate the datestamps attached to the photographs (please also see points relating to both these issues below) 24 minutes is perfectly within scope of both the MINIMUM grace periods and any potential error in time recording.

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

4) There is no landowner authority nor legal standing to form contracts or charge drivers. 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 un-redacted 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 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 Code of Practice 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

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

I would challenge Parking Eye to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge Parking Eye that they possess the technology to generate these precise types of photographs, as the date stamps have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

In addition, the photographs show <vehicle reg> on a road with no significant markings other than a single piece of white centreline marking in the image where the front registration plate is shown and what appears to be a give way marking in the image where the rear registration plate is shown. As there is no marking on the photographs to indicate which specific camera took the photograph, and no other distinguishing features in the feature other than <vehicle reg>, the distinct possibility that the photographs were taken of the vehicle when it was elsewhere and used in this instance cannot be dismissed. I again would challenge ParkingEye to prove the photographs as provided to me are indeed genuine.

I therefore request that POPLA uphold my appeal and cancel this PCN.