Should I win? POPLA

Gotchargedunfair

Thanks coupon-mad. I think if any popla assesor read my appeal and find out that they have issued a fine of 100 pounds for 8+6 minutes they will accept the appeal (hopefuly)

Coupon-mad

Not really, they don't think like that. You need to explain why the driver took those minutes, be detailed about the state of the potholed car park and faded keypad on the machines (like marganne did, read her thread, use her photos too).

Umkomaas

The first 'Grace Period' (on arrival) is not '10 minutes minimum'. Check it out in the BPA Code of Practice to get the correct wording.

Gotchargedunfair

Thanks, I am on it. I will come back with the update from marganne

Gotchargedunfair

Ok guys, I have been all day modifying this. I know it is too much. With pictures it is 9 pages. I have put grace periods at the top and also I have included parts from marganne´s appeal. Also I have modify the 10 minutes minimum grace time period. What do you guys think?

POPLA Ref XXXX
Parking Eye Parking Charge Notice no XXXX

A notice to keeper was issued on XXXX and received by me, the registered keeper of XXX for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at the Aire Street Leeds car park. 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) Grace periods unclear and not properly applied
2) Initial appeal refused as a matter of course without any substantive effort to reply
3) Misleading and unclear signage
4) The contravention on the PCN did not occur.
5) No landowner authority nor legal standing to form contracts or charge drivers
6) Photo evidence appears doctored
7) The charge is a penalty, breaches the CRA & is not saved by ParkingEye v Beavis


1) 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:

“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.”

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 12:21 and a departure time of 17:35 – an alleged overstay of 13 minutes. (See attached copies of the Parking charge and the receipt purchased)

(photo with receipt and parking charge)


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 Aire Street Leeds Car park is a busy location which appears to have a train station, popular shops and it is located in the city centre of Leeds. Given the date (three days after 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, then go to the display machine, read the terms and conditions and also the instructions of the machine to get the ticket.

The P&D machines were at the opposite ends of the badly-surfaced car park and not easy for any disabled person or any parent carrying a buggy for example to walk to or get the technology to work. The driver reports that the first machine looked old and was hard to get to over waste land - and it was faulty.

At the first machine, in trying to purchase a P&D ticket, several attempts were made to input the registration, then the driver tried to pay but the machine failed, kept rejecting coins. There was no option to pay by card or phone. The driver tried phoning the number PE supplied for booking extra parking time. It was an automated call and kept asking the driver for the reference number at the top of the PCN letter (i.e. to pay a PCN only).

(picture of the machine)

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

So, that was the first machine only. The driver who did everything reasonably possible to pay had to give up with that machine, hobble back across the waste land and to try the second machine instead. The driver of my car put in £6.50. It was very difficult to follow the illegible, dark & scratched/faded instructions.

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 (just 8 minutes since the ANPR detected the car accessing the car park and the driver obtained the ticket issued by the machine and 6 minutes from the expiry time and the picture taken by ANPR of the car leaving the car park) until them 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 12:21, and left at 17:35 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) 13 minutes in total (8 minutes at the arrival until the receipt was issued and 6 minutes at the departure) 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.


2) Initial appeal refused as a matter of course without any substantive effort to reply


The initial appeal lodged with ParkingEye 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.


3) Misleading and unclear signage


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.

The picture of the sign at the entrance, collected from Google Earth, shows a small sign:
The signs and the machine tariff board were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:
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:

http://imgur.com/a/AkMCN

The terms appear to be displayed inadequately at the machine, where only the tariffs are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size. As evidence that this is inadequate notice, Letter Height Visibility is discussed here:

signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 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.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

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

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 the Aire Street Leeds car park for the ParkingEye signage and cameras. 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':

legislation.gov.uk/ukdsi/2008/9780110811574/contents

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.''



4) The contravention on the PCN did not occur.



The PCN says that the driver failed to purchase sufficient time/underpaid a tariff. But it seems from the machine’s faded instructions that the maximum parking time (unbeknown to the driver) was only five hours. So it cannot be said that the PCN was properly given because it would not be possible to purchase extra parking time at this car park, beyond the £6.50 paid.



5) No landowner authority nor legal standing to form contracts or charge drivers


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”


6) 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 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 XXXX on a road with no significant markings. 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 XXX, 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.



7) The charge is a penalty, breaches the CRA & is not saved by ParkingEye v Beavis


This situation is an 'ordinary' contract, a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a faulty set of machines and can be very easily distinguished from the case of ParkingEye Ltd v Beavis. Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held: ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary contracts with a transaction and tariff: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge out of all proportion to the tariff - which was paid in any case for the time actually parked and the driver left before expiry of the ticket - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position: - Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

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

Gotchargedunfair

Guys_Dad wrote: »

What a long winded, yawn producing appeal !

Do you really need all that padding?

I would move the Grace periods to the first or second point of appeal, quote the BPA CoP paragraphs on that point.

Umkomaas wrote: »

The first 'Grace Period' (on arrival) is not '10 minutes minimum'. Check it out in the BPA Code of Practice to get the correct wording.

Coupon-mad wrote: »

See what I suggested on your other thread - check out marganne's evidence about what holds people up at Aire Street.

Any last opinion before I send it? Thanks

Guys_Dad

Well, it looks better and I am more inclined to read it.

I would change the following "it is not inconceivable that the car park would be very busy."
I would say that "it is obvious that , with the post-Christmas sales being in full swing, that the car park would be very busy"

It might be worth quickly reading here for Grace and other points and quoting anything you find useful http://www.popla.co.uk/docs/default-source/default-document-library/popla-annual-report-2016.pdf?sfvrsn=2

Umkomaas

Well, it looks better and I am more inclined to read it.

Much better - now down to just over 4,000 words. Much more readable! :cool: