ParkingEye Charge - Two Saints Retail, Ormskirk

atwinny

Hi,
I've received a parking charge notice of £100 (£60 if paid in 28 days) from Parking Eye for parking at Two Saints Retail Park, Ormskirk for 1 hour 11 minutes. You get the first hour free but the time it took to get into the car park, find a space, go shopping, unload the bags and leave the car park has obviously took me over an hour.
I have read the newbies thread as discussed in other threads but I'm finding it hard to fully understand what I need to do.


Can someone help me along appealing this case please through this thread?


Firstly, do I just appeal on the website of Parking Eye with the following:

Dear Sirs
Re: PCN No. xxxxxxxxxx
I challenge this 'PCN' as keeper of the car.
I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers.
There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.
Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.
I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days. I have kept proof of submission of this appeal and look forward to your reply.
Yours faithfully,


Everyone's help is very much appreciated. Thanks

Guys_Dad

NO.

If what you are saying is 100% accurate, you have a clear get out of Jail free on GRACE period.

You need to read the BPA Code of Practice re Grace periods. see here, section 13 page 9
http://www.britishparking.co.uk/write/Documents/AOS_Code_of_Practice_October_2015_update_V6..pdf

That allows for a period at the beginning and the end and will easily cover your period. Presumably it was ANPR covering your time of entry and exit, not the actual parking period?

Your appeal should be based around that, as well as asking what their policy re Grace periods are at this location, as in the bit I quoted you.

There is also the 2015 annual report from the previous lead adjudicator at POPLA who wrote a section on Grace periods here https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

In particular

Just as there may appropriately be a grace period at the end of the parking session there must also be a reasonable period before it is deemed tocommence

Coupon-mad

Yes that is correct. You could add a line or two about Kelvin Reynolds' BPA article to that first appeal and mention the BPA Grace /Observation periods required of a minimum (not maximum) ten minutes, to try to force them to give up.

But don't say who was driving!

Is your PCN of the 'special, late posted' type shown in a link in post #3 of the NEWBIES thread - a 'non-POFA' (blank space at the bottom) type of PE PCN? An example of it is shown in a link and it explains that PCN is a slam-dunk winning one at POPLA for a keeper appellant who never says who was driving.

Or does yours talk about the POFA 2012 and 29 days till 'the registered keeper will be liable'?

2nd stage of POPLA will be a much more detailed stage but I'm sure you will be able to find one someone wrote earlier (MUST be recent, past 6 months ONLY) by searching the forum for 'ParkingEye POPLA grace period Kelvin'.

atwinny

Thanks for the update. The Parking Charge Notice is two photos of my car, one arriving at the car park and one leaving the car park. It says I was at the car part for 1 hours 11 minutes.


How should I appeal this then? Are you aware of any templates I can use for my appeal and is it done on the PrivateEye website?


The Parking Charge Notice under the photos mentions:
'You are warned that if, after 29 days from the date given, the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you. This warning is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of that act'


Again - many thanks for your help

Coupon-mad

How should I appeal this then? Are you aware of any templates I can use for my appeal and is it done on the PrivateEye website?

ParkingEye website (not Ian Hislop's Private Eye!).

Use the template you have already got and add Kelvin Reynolds wording to it, which you will find if you search the forum for 'Grace periods Kelvin Reynolds' same as when you get the POPLA stage, searching the forum works best because someone will have already written one.

The Parking Charge Notice under the photos mentions:
'You are warned that if, after 29 days from the date given, the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you. This warning is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of that act'

Annoying it's not the easy one (late posted ones with nothing like that wording are best), but 'Grace Periods' will win it at POPLA stage, if worded well.

atwinny

Brilliant. Thanks for the advice.


I will appeal on the website with the following, unless there's any further advice...

Dear Sirs

Re: PCN No. ....................

I challenge this 'PCN' as keeper of the car.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers.

Also, Parking Eye have completely failed to observe and acknowledge the BPA’s Grace Period of a minimum of ten minutes.

The BPA Code of Practice sets a MINIMUM ten minutes grace period as well as a second ten minutes grace period to exit. Kelvin Reynolds of the BPA stated:

“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.”

Source: britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

The suggested minimum ten minutes should also have been extended when taking into consideration, the car park in question is known to be busy; serving 3 shopping chains and a busy McDonalds thereby requiring additional time to enter, find an empty parking bay, unload children/buggies, and reverse the procedure as well as load shopping and exit the car park when leaving.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.

I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days. I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,


Can this thread please be kept open for me to get valuable help in the ongoing stages of this appeal?

Coupon-mad

Can this thread please be kept open for me to get valuable help in the ongoing stages of this appeal?

Yes, don't worry, no-one will close it and you can reply anytime which takes it back to the top of page one, next time you need help.

If that appeal is too long for PE's online page, chop off the last 2 or 3 paragraphs.

atwinny

UPDATE:


Just had this email through saying they have rejected my appeal:




*************************
Dear Sir / Madam,

Thank you for your correspondence in relation to the Parking Charge incurred on 06
March 2017 at 13:07, at Two Saints Retail Park car park.

We are writing to advise you that your recent appeal has been unsuccessful and that you have now reached the end of our internal appeals procedure. Our records confirm that no parking was purchased on the date of the parking event, despite there being payment methods available on the day in question. Please be advised:
· There is an independent appeals service (POPLA) which is available to motorists who have had an appeal rejected by a British Parking Association Approved Operator. Contact information and further information can be found enclosed.
· As a gesture of goodwill, we have extended the discount period for a further 14 days from the date of this correspondence. If you appeal to POPLA and your appeal is unsuccessful you will not be able to pay the discounted amount in settlement of the Parking Charge, you will be liable to pay the full amount. If you have already paid the reduced amount, the Parking Charge will be increased to the full amount and you will be liable to pay this increase.


· By law we are also required to inform you that Ombudsman Services provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.





A payment can be made by telephoning our offices on 0330 555 4444 or by visiting parkingeye or by posting a cheque or postal order to ParkingEye, PO Box 565, Chorley, PR6 6HT.
Yours faithfully,
ParkingEye Team
*********************************







Any help on what to do next please? Ta

Coupon-mad

Go to post #3 of the NEWBIES thread and pull together a few template POPLA points, plus add one about Grace Periods by copying a relevant recent one. I'd search the board for 'ParkingEye POPLA Grace Periods Kelvin' and find a POPLA appeal someone has already done in very recent months.

Show us what you cobble together.

atwinny

Thanks...


I've found this one and made amendments to it. I just need the links to add into the statement. Does anyone have these?


Here is the appeal anyway - can you take a look and advise on what needs to change (if anything)


POPLA Ref <ref>
Parking Eye Parking Charge Notice no <ref>
A notice to keeper was issued on 10/03/2017 and received by me, the registered keeper of <CAR REG> for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at Two Saints Retail 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) 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 15/06/2017 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 which is facing the opposite way:
***I will take an image of the entry sign from Google maps and enter it here***
The closest sign to the entrance which appears to have any mention of ParkingEye or any charge shown in the image below:
***I will take an image from Google maps of the poor location of the signs and enter it here***
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.
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>
***where can I find this link????? ***
As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
<amazon sign link>
***where can I find this 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>
***where can I find this 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 Two Saints Retail Park for the ParkingEye signage and cameras. 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'.
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>
***where can I find this link????? ***
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:
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>
***where can I find this 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 11:55:52 and a departure time of 13:07:27 – an alleged overstay of 11 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”.
Two Saints Retail Park is a busy location which appears to have a popular set of shops and restaurants. Given 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! 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 11:55:52, and left at 13:07:27 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) 11 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).
I therefore request that POPLA uphold my appeal and cancel this PCN.

The_Deep

Have you warned PE that, unless this charge is cancelled, you will be billing them for your time? It will not do much good, they will deny any contract exists, but it will cost them money, especially when you win your PoPLA appeal and send them invoices, and perhaps a home-made LBA.

Read this.

http://parking-prankster.blogspot.co.uk/2014/03/waiting-for-space-is-not-parking.html