Parking Eye Appeal Rejected - Charged £100 for 16 minutes.

LeedsGirl94

Elysander wrote: »

The OP in the thread below reported a win against PE last month for this car park. Unfortunately the poster hasn't come back with details of the decision. Would be very interesting to see if the redacted contract was the winning point.

http://forums.moneysavingexpert.com/showthread.php?t=5575388&highlight=aire+street

I am the author of that thread, unfortunately I still haven't seen the full decision but my friend says we won on the basis that PE provided no evidence. I'm slightly confused because they did send a very lengthy response so can only assume POPLA meant that they provided no evidence disproving our appeal points, the bulk of which centered around the unfair usage of the ANPR system.

They did in our case provide a copy of the contract which was very out of focus and heavily redacted which meant it was unreadable to anyone!

Coupon-mad

AndreasA wrote: »

Could this alone win me this case?

No - probably not but it is one point of several - but you may well win on other POPLA points or cause them not to contest.

Read Marganne*'s thread which was a POPLA win at Aire Street - I wrote the POPLA appeal for her as she was struggling - and whilst you will not be able to use the disability/broken machine points, you will be able to use the rest because the signs, driving surface and machines are old and rubbish at this site with narrow entrance & exit which slows people down even just reading the terms. Plus other template points of appeal apply (as per post #3 of the NEWBIES thread which is all about POPLA stage and gives you the wording).

If I had a PCN from Aire Street I would contest it to POPLA, 100%, no question, partly because the ownership of the land there (which has probably not even occurred to you but is one of our POPLA template points) is questionable/has changed recently in 2016. We've not seen proof of authority that stacks up at POPLA, re this site, and that DOES win an appeal.



*search the member's list for Marganne and read her thread from 2016

AndreasA

Coupon-mad wrote: »

No - probably not but it is one point of several - but you may well win on other POPLA points or cause them not to contest.

Read Marganne*'s thread which was a POPLA win at Aire Street - I wrote the POPLA appeal for her as she was struggling - and whilst you will not be able to use the disability/broken machine points, you will be able to use the rest because the signs, driving surface and machines are old and rubbish at this site with narrow entrance & exit which slows people down even just reading the terms. Plus other template points of appeal apply (as per post #3 of the NEWBIES thread which is all about POPLA stage and gives you the wording).

If I had a PCN from Aire Street I would contest it to POPLA, 100%, no question, partly because the ownership of the land there (which has probably not even occurred to you but is one of our POPLA template points) is questionable/has changed recently in 2016. We've not seen proof of authority that stacks up at POPLA, re this site, and that DOES win an appeal.



*search the member's list for Marganne and read her thread from 2016

Just read through this appeal you made on Marganne's behalf. It does seem like she has a lot more ammunition that is currently available to me. Mostly based on my 'suicide' appeal naming the driver.. I guess it's too late to turn that one around?
Other than that.. I can see maybe using points:
1: Reasonable Grace Period (is 16 minutes too much here?)
2
3
4
and 8

Does this seem right?

Loadsofchildren123

Well it seems to me that you have nothing to lose by doing a POPLA appeal. A bit of time and effort will have to go into it though.


16 minutes.....could go either way but worth a try. You drove in, looked at the signs, rummaged through your small change, decided you didn't want to accept the terms and conditions and avail yourself of the parking, you got your phone out and looked where else to park and then drove out. Any other reason why you were a bit slow leaving? Eg. was it a large car park and you drove around looking for a space before it occurred to you to check if it was a cash only site? Perhaps you got stuck behind another driver on the way in or out, which delayed you as well, albeit only a couple of minutes. 16 minutes could sound reasonable enough. Grace periods are not defined (except the 10 minute grace period for leaving after the end of a parking period). One POPLA assessor may say it's too long, another may say it's reasonable.

Fruitcake

AndreasA wrote: »

Just read through this appeal you made on Marganne's behalf. It does seem like she has a lot more ammunition that is currently available to me. Mostly based on my 'suicide' appeal naming the driver.. I guess it's too late to turn that one around?
Other than that.. I can see maybe using points:
1: Reasonable Grace Period (is 16 minutes too much here?)
2
3
4
and 8

Does this seem right?

Post your draft appeal here for others to look at. Nobody will want to keep looking at another thread then come back here to comment. Putting everything in one place will make it easier for everyone.

Looking at your second image, someone might have difficulty finding the pay machine if the signs for it were hidden behind a van ...
They might not know where to look until they went back again and took pictures to show how difficult it might be ...

AndreasA

Below is my initial draft for a POPLA appeal.. Any feedback welcome. I have used the other Airestreet case appeal as my draft as some of the points apply (and I wouldn't know where to start writing this from the ground up..)

I am the registered keeper and I am appealing this parking charge from Parking Eye at Aire St, Leeds.
The driver went to find a parking space, but due to uneven surface and unclear signage, the driver decided on finding parking elsewhere after considering the options for this.
My appeal as the registered keeper is as follows:

1, No reasonable grace period allowed.
There was nothing about £100 penalty on the machines and the wording was almost illegible.
(PICTURE from other appeal?) .

The British Parking Association code of practice 13.2 states: ‘’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. ‘’

The period between entry and leave was 16 minutes, where the driver was considering his options, and due to condition of the parking lot as well as unclear signage, before deciding to leave.

2. No keeper liability – no adequate notice of the parking charge and this was not one single period of parking. Also, the ‘parking charges that remained unpaid’ were not described.
The operator is trying to hold me liable under the POFA Schedule 4 but there was no adequate notice of any £100 charge, you can see from the machine photos that you can only just make out a tariff but there is nothing about £100 and there were no clear signs near the places the driver parked which was waste land and any other terms were too high to read or obscured by foliage.

3. 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 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.

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.

4. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself at the machines.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case. The terms on the machine were unreadable and the signs are not the ‘brief & prominent’ signs in the Beavis case.
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. 1-2” letters (or smaller) would
work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:
http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

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

So, a letter height of just half an inch, placed high on a wall or pole, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective & height, you would have to stand right in front of it and still need a magnifying glass, for a disabled driver to be able to read any terms.

Under Lord Denning's Red Hand Rule, the charge should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat - and at BOTH P&D machines - not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

5. The ANPR signs (if any) fail to state how the data will be used
The driver had no idea that their total stay, deciding whether to use the parking services in the waste-land area of the car park, would be calculated from the moment they drove in. This is a BPA CoP breach as well as an ICO breach and means the driver could not make an informed decision.
As there are no signs to explain otherwise, the ANPR system cannot secretly calculate the time from entry from the road.

Coupon-mad

Mostly based on my 'suicide' appeal naming the driver.. I guess it's too late to turn that one around?

Yes, it is too late to change that so you can't use the POFA at all.


Try this, writing as the driver seeing as you are certain you have already admitted that:



POPLA code xxxxxxxxxx

I am appealing this parking charge from ParkingEye and these are my appeal points against this unfair charge which was not properly given because I did not park nor agree to their spurious secret timing and alleged 'contract':


1, No reasonable grace period allowed.

I was the driver and I drove in with the intention of finding a parking space. However, due to the specific conditions of this badly-maintained car park (very stony/uneven surface and unclear signage and payment machines) I decided to locate a more user-friendly car park elsewhere and this event was all over within a (perfectly reasonable) few minutes.

Firstly, my vehicle entered the car park and the entrance is narrow (one car can get past at a time, same narrow entrance and exit for all as far as I recall, with cars parked alongside meaning you have to queue before you can drive further in, and when leaving). Unbeknown to me, at this point I was already being timed but I had no idea of this unfair business practice which was not obvious at all and the cameras were very small and hidden high up.

The BPA Code of Practice (CoP) in section 13.4, requires operators to: “allow the driver a reasonable period to leave the private car park'' and the CoP continues: ''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”. Whilst this is a medium sized car park it is narrow and badly maintained which I assume ParkingEye will not show in their photos.

The facts are that it is difficult to drive around and hard to find a space here that is not badly pot-holed. When manoeuvring through this site it would be at least 5 - 10 minutes before any driver is likely to have managed to park and then walked over to a pay machine to read the wordy terms.

These machines are only situated at the two extreme ends of the site and are old, the screens are scratched, the keypads faded and the tariffs and t&cs unclear. There is nothing on the 'point of sale' machines about any £100 charge, nor about the fact you have secretly already been 'clocked' ten minutes earlier and have by then, just seconds to read the terms then quickly hop back in a car and drive like the clappers to get out to frantically avoid a penalty you never agreed to. The period between entry and leaving was (apparently, but unproven as synchronised timings in and out of the site) just 16 minutes.

I stood for mere minutes at the faded & scratched machine, trying to work out if I had the right change and what the various different terms are at certain times of day, because not only is the car park surface not 'user-friendly' but nor are the terms immediately clear.

Due to the unacceptable condition of the parking surface - full of pot-holes - as well as unclear signage and a lack of change for the machine (once I had made out the faded words on the old, weather-worn screen) I decided to leave without accepting any 'contract'. To be clear: I did NOT accept their contract by performance because (unlike in ParkingEye v Beavis) my actions did not involve parking and leaving the car. In fact it is common ground that I soon drove out. That action, within mere minutes, was recorded by the exit camera as I waited to re-join the road and the fact I left as quickly as I possibly could, given the difficult car park conditions, proves my non-acceptance of the terms.

So, given the state of this site and machines and signs, my actions surely fall well within a reasonable 'observation period' (at the start) plus the 'grace period' (the time allowed to get back into the car, vacate any space, drive past other cars and queue at the road, to leave, which the CoP defines must be a MINIMUM of ten minutes in itself).

Kelvin Reynolds of the BPA says in a published, official article about good practice:

http://www.britishparking.co.uk/News/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.”

So the BPA believes that 5-10 minutes 'observation' period is acceptable depending upon various factors and then you must allow a MINIMUM of another ten minutes at the end - and Mr Reynolds says: ''there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.''

The conclusion must be that with 5 - 10 minutes allowed for arrival plus AT LEAST ten minutes to subsequently leave, a mere 16 minutes all told in this particular badly-maintained car park must not generate a penalty against drivers who leave as soon as they can, waiting to drive past parked cars and giving way to arriving cars, and out onto the busy road.

The PCN cannot be deemed fairly or properly given.



2. 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 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.

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. This site has also changed hands more than once in recent years so the contract needs to be shown to prove start and expiry dates as well as to sufficiently evidence the definition of the services provided by each party to the 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.



3. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself at the machines.

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

(PICTURE from other appeal?) . <<< yes!

There was no adequate notice of any £100 charge. You can see from the machine photos that you can only just make out a tariff but there is nothing about £100 and there were no clear signs near where I stopped whilst looking through my change and trying to work out the tariff applicable at different times and on different days.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case. The terms on the machine were unreadable and the signs are not like the ‘brief & prominent’ signs in the Beavis case.

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. 1-2” letters (or smaller) would
work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:
http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

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

So, a letter height of just half an inch, placed high on a wall or pole, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective & height, you would have to stand right in front of it and still need a magnifying glass, for a driver to be able to read any terms.

Under Lord Denning's Red Hand Rule, the charge should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

So, for this appeal, I put this operator to strict proof of where and for how long, the car was actually stopped and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat - and at BOTH P&D machines - not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be assimilated from a car before parking nor read & understood quickly at the machine. Mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this and a lack of machine pictures will mean my photo remains unchallenged.



4. The ANPR signs (if any) fail to state how the data will be used or that the clock is ticking before one even parks, and certainly well before even reading the terms and looking for the right change when deciding whether to stay.

The driver had no idea that their total stay, deciding whether to use the parking services in the waste-land area of the car park, would be calculated from the moment they drove in. This is a BPA CoP breach as well as an ICO breach and means the driver could not make an informed decision. As there are no signs to explain otherwise, the ANPR system cannot secretly calculate the time from entry from the road and the PCN was not properly given.

Fruitcake

C-m, there is no point 3 in your draft suggested appeal.

Coupon-mad

Fruitcake wrote: »

C-m, there is no point 3 in your draft suggested appeal.

Ta - have put that right (caused by removing point #2, moving the next point up, then forgetting to re-number.

AndreasA

Thank you so much for this!!
I don't currently have a picture of the payment machine.. Do you reckon I could reuse pictures from Marganne's case? They depict quite clearly the issue anyway.
Also should I reword it so everywhere it refers to 'the Driver', to say 'I' instead?

Again, thanks so much for this