ParkingEye Aldi Biggleswade PCN

NinjaSparky

Good morning everyone

Thanks for the brilliant site, because of you guy's I've decided to stick-it-to-the-man and contest my PCN from ParkingEye. I used the advice given in the "Newbies Thread" to appeal to ParkingEye and have received my "unsuccessful" appeal letter with POPLA reference (When are the going to figure out that this is a win for us )

I have a couple of questions about my POPLA appeal though. I have returned to the "Scene of the crime" and taken photographs of the signage. This includes a picture showing that the large sign at the entrance is actually over 15 meters away from the entry, all of the small signs are the smallest size as set out by BPA (450mm x 450mm) and of those signs 4 out of 5 are bent. 3 out of 5 are turned away from the direction of travel etc. etc. etc.

My question is this. Do I include these in my POPLA appeal or do I ask ParkingEye to provide photo's of the signs and then submit my photo's as a rebuttal?

Thanks for the great advice, you guys are amazing

Umkomaas

Once you've submitted your POPLA appeal you can't add any new stuff, so an 'ambush' with photos that contradict what PE might submit won't work.

Add your photos to your initial appeal, let PE rebut those. But the signage appeal point will be much more comprehensive than photos - there's a very derailed signage appeal section already written for you in the NEWBIES FAQ sticky, post #3. Use that (and photos). There are also a number of 'ready-writtens' for you to use too in the sticky. No need to reinvent the wheel.

Let us see your draft before submission.

But all of the above could be avoided. What have you done about complaining to Aldi's HO, where there is a specific parking department (no doubt set up to deal with the torrent of complaints we've seen over the past 4 years)? If you spent >£30 on the day, they're likely to cancel straight away. If you're a regular Aldi shopper, copy them past receipts/bank/cc statements to prove you're a good customer of theirs who they won't want to lose if they don't cancel this.

Kick up a fuss on their Facebook page - it usually gets things moving in your direction.

NinjaSparky

Thanks Umkomaas

I'll put up a draft before I send it off.

Unfortunately the parking area serves all the local shops (they've edited the sign by sticking a sticker over "Aldi only" that says "Local Shoppers Only") On the day in question the driver only went to the barber shop and doesn't spend much in Aldi.

Quentin

Hopefully you are appealing as the keeper??

You need to edit your post to remove details of who was driving.

The ppcs monitor this forum and can use your posts against you

Coupon-mad

NinjaSparky wrote: »

Thanks Umkomaas

I'll put up a draft before I send it off.

Unfortunately the parking area serves all the local shops (they've edited the sign by sticking a sticker over "Aldi only" that says "Local Shoppers Only") On the day in question I only went to the barber shop and we don't spend much in Aldi.

Read this, they had to amend the sign because the Council would have prosecuted Aldi, if not:

https://forums.moneysavingexpert.com/discussion/comment/63761390#Comment_63761390

What's the accusation then? Overstayed the time allowed?

Surely PE haven't retained the machines in Aldi to key your VRN in, and expect the 'local shoppers' to go into Aldi to do so...

NinjaSparky

Hi Coupon-Mad

Yes, the driver overstayed by a whole 18 minutes (I plan to query their grace periods) in an fairly empty car park. No, they don't have VRN keypads, thank goodness.

I'm almost done with my appeal, it's looooong. 18 pages at last count, focusing mainly on signage and landowner authority (+ grace period) but with a bit of POFA, driver liability, keeper liability, ANPR misuse, NTK photographic evidence, parking period vs drive through time. double dipping etc.

I found an interesting white paper article relating to ANPR as used by government agencies for various purposes, relation to how the setup of the cameras and external influences affect the accuracy and capture rate of the systems. They show an accuracy rate, with carefully setup cameras, of only 93%. Is this something that people could use?

uhra.herts.ac.uk/bitstream/handle/2299/12527/The_effect_of_ANPR_Camera_Settings_on_System_Performance_RG_MR.pdf?sequence=2

Coupon-mad

I found an interesting white paper article relating to ANPR as used by government agencies for various purposes, relation to how the setup of the cameras and external influences affect the accuracy and capture rate of the systems. They show an accuracy rate, with carefully setup cameras, of only 93%. Is this something that people could use?

uhra.herts.ac.uk/bitstream/handle/2299/12527/The_effect_of_ANPR_Camera_Settings_on_System_Performance_RG_MR.pdf?sequence=2

Yes, I think the parking Prankster found that or a similar report a few years ago and at best, we know ANPR isn't reliable.

Trouble is, POPLA don't listen to that argument; they've been told by the BPA that ANPR is unreliable and in the absence of proof otherwise (not just articles) they won't allow an appeal on that basis.

NinjaSparky

Ok, so here goes

NinjaSparky

Dear Sir/Madam
Re: PCN No....
POPLA Ref: ....
Vehicle Registration: ...

As the registered keeper of the above vehicle I wish to appeal the parking charge notice ParkingEye Limited has issued against it.

I would like the parking charge notice cancelled based on the following grounds:

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

2.There is no evidence of Landowner Authority.

3.Breach of BPA Code of Practice due to photographic evidence.

4.Misuse of Automatic Number Plate Recognition (ANPR).

5.No Keeper Liability.

6.No Driver Liability.

1.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

a)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 proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.!

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

imgur.com/a/AkMCN

It should also be noted that, while the operator makes much of the “ParkingEye Ltd v Beavis” case, this case was appealed for the following reasons and these reasons only:

Paragraph 93: “Before Judge Moloney QC and before the Court of Appeal, Mr Beavis raised two arguments as to why he should not have to pay the £85 charge, namely that it was (i) unenforceable at common law because it is a penalty, and/or (ii) unfair and therefore unenforceable by virtue of the 1999 Regulations.”

supremecourt.uk/cases/docs/uksc-2013-0280-judgment.pdf

Any other reason than these must be considered separately and the Beavis case does not set a precedent for ParkingEye to win all it’s cases except were these arguments are the only reasons put forward.

It should also be noted that the Judges specifically did not abolish the penalty rule. Therefore in a totally dissimilar case to “ParkingEye Ltd v Beavis” such as this, where a contract has not been individually negotiated as the terms cannot be read and agreed upon, the Unfair Terms in Consumer Contracts Regulations 1999 still apply. As the signage will clearly be shown to be in breach of BPA CoP below, as well as specifically placed in a manner that makes the terms of any contract unreadable, no contract can be said to have been entered into with the keeper of the vehicle. If there is no contract then the Parking Charge Notice IS a penalty. If this is a penalty then it IS unfair and unenforceable.

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and!'agreement on the charge'!existed. Without this agreement and contract the penalty in this case would be deemed unconscionable and extravagant .

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are bent, distorted, faded and often turned away from view. They have been altered with stickers placed over certain sections of text. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.!

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed at the entrance either - i.e. with the sum of the parking charge itself in large lettering. It cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

b)There is no sign at the entrance, even though there is more than adequate space and even provision for a sign. The closest sign to the entrance is 15 meters away from the entry and over 2 meters high to the lowest point of the sign. The distance to the sign can be see below with measurements taken using Google maps built-in distance measuring tool. It can also be seen on the image that there is ample space to place parking signs directly to the left and right of the entrance. This is in direct violation to BPA’s CoP Paragraph 18.2: “A standard form of entrance sign must be placed at the entrance to the parking area. There may be reasons why this is impractical, for example:
i.When there is no clearly defined car park entrance
ii.When the car park is very small
iii.At forecourts in front of shops and petrol filling stations
iv.At parking areas where general parking is not permitted

These reasons clearly don’t apply therefore there must be a entrance sign. The entrance is clearly marked “ENTRY” on the road and there is space to the left and right of this but no entrance sign.

imgur.com/FiyfqMR

The below photograph shows the provisions already in place to the left of the entrance for a sign but it has not been used.

imgur.com/5GGW8pb

In addition the closest sign to the entrance is placed to the left of the viewpoint of a driver. The entrance has two lanes of traffic crossing over from the right-hand-side which have right of way over the incoming traffic and none coming from the left due to a one way lane, therefore it is totally reasonable to assume that any driver would be concentrating on the traffic coming from the right and not looking left at the sign. This is in direct violation to BPA’s CoP Annex B: “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.” The photograph below shows how if driving straight into the car park the sign is completely to the left of the car and well above the roofline.

imgur.com/bqfn9yt

The below image edited from Google show the flow of traffic through the parking lot. It can be seen that a large portion of the car park is accessed by travelling straight or turning right therefore it cannot be assumed that a person would drive past this sign until they are leaving and even then it would be higher that the average roof.

imgur.com/s0zRlhS

c)From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.!
The letters of the wording specifically pertaining to the “Parking Charge” seem to be no larger than a 36 point font size based on the fact that they are less than half the height of a £1 trolley token (22mm diameter coin). My apologies for the quality of the picture, the signs are over 2 meters from the ground to the bottom of the sign and difficult to reach, never-mind photograph.

imgur.com/csbyM8O

As further 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. 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:

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 showing the 'Penalty Charge', placed over 2 meters high on a wall or pole, with other terms buried in far too crowded small print and legal jargon, 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 and height, you would have to stand right in front of it and still need a stepladder to be able to read the terms.
This equates to a “best viewing distance” of 5 feet or 1.52 meters and a “maximum viewing distance” of 20 feet or 6.1 meters. As the signs are over 2 meters high and the average drivers eye height of 1.05 meters this equates to a difference of 0.95 meters. This would mean that, ignoring the fact that a sign viewed at an angle decreases is readability and ignoring the roofline of the car, the best viewing distance would be 1.2meters away from the pole. For someone to read the sign at its best viewing distance they would have to crash their car into the pole that the sign is mounted on and remove the cars roof.

comparativegeometrics.wordpress.com/2014/07/02/values-for-driver-eye-height/

imgur.com/hkJ3C3b

d)The signs are spaced sporadically and even considering their maximum viewing distance large areas of the car park have no signs viewable.

The below picture edited from Google maps shows the approximate location of the signs and the direction they are facing. Signs 1-5 are the smallest signs allowable by the BPA CoP measuring just 450mm x 450mm. Sign 6 is the closest sign to the entrance. It does not state anything about a penalty charge or indeed what that penalty charge is. Sign 7 is the only large format sign on site which displays the full terms of the parking lot, it is roughly 4 times the surface area of the other signs. It is still approximately 3 meters off the ground but the wording is legible from a reasonable distance away. Yet for some reason this sign is put around a corner where it is visible to only 8 or 9 parking spaces, this illustrates perfectly that these large, visible signs are available yet this industry chooses not to use them correctly. It is my opinion that on a site such as this all the signs should be a large format sign and there should be twice as many signs at least.

imgur.com/ppW8Ma0

The following pictures show the maximum viewing distance from each sign using Gogle maps in-built measuring tool. From these pictures it can be seen that the vast majority of the car park is not covered by these signs.

The sign at position 1 can be seen at possibly 3 parking spaces. In addition it is bent and set even higher than most of the signs in the car park. Why is this sign placed right at the end of the parking lot. A large size sign placed midway down that length of wall would be far more visible.

imgur.com/Pxvbz5F

imgur.com/5myjqRm

imgur.com/s9odsJt

NinjaSparky

The sign at position 2 can be seen by a maximum of 6 parking spaced but as it is parallel to the spaces it could only be seen once the occupants have left their vehicle. In addition it is warped and the picture shows most clearly that there are stickers attached over the terms at the bottom and the “local shoppers only” at the top. The first photograph is taken from the end of the parking bay, just more that 6 meters away and the terms on the sign are clearly not legible. Why is this not a large format sign with another sign facing the opposite side of the pole so that is can be seen from both directions?

imgur.com/wB1jzWp

imgur.com/vLmHB69

imgur.com/MuGlfAv

imgur.com/Mz7B7ec

Sign 3 is set parallel to the road and higher than the average roofline, over 2 meters from the floor to the bottom of the sign. As traffic flow past it is one way and takes up the entire width of the road it cannot be seen when driving past. It cannot be seen by cars parked across from it as they are to far away. This sign is visible to zero parking bays. Why is this not large format sign to make it visible from across the road. Why is is not placed at eye level where it can be read from inside a car, it is clearly not going to obstruct anything if it is lowered.

imgur.com/PCz1yP7

imgur.com/JQgbmhw

Sign 4 might have been visible from four parking spaces however the sign has been bent and turned away from the majority of the car park. Why is there not a large format sign set against the back wall of this part of the car park, at eye level, to make it visible to all cars turning into this portion of the car park.

imgur.com/t2PNRMr

imgur.com/h14jpbf

imgur.com/3kF71XY

Sign 5 is visible to only 4 parking spaces but is bent and tuned away from the majority of the car park. Again, why is this not a large format sign turned towards the direction of travel and set at eye level.

imgur.com/JVZSEwL

imgur.com/TFW57Vo

imgur.com/QKI15dY

There are also no signs visible from the two pedestrian exits as shown in the photographs below.

imgur.com/SuSWXGe

imgur.com/hqt5q0c

imgur.com/NhL47De

imgur.com/ZIg9Vak

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

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, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. 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.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact!'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106'!about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgement is binding case law from the Court of Appeal and supports my argument, not the operator's case:

bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

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, 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.The signs in this car park are not prominent, clear or legible from all parking spaces.

NinjaSparky

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 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 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

In addition to the above it is believed that there is some doubt as to the legitimacy of the agreement with the landowner as several news articles call into question the ownership of the area that ParkingEye regulates as well as a council order regarding the time restriction put in place by ParkingEye. There is also an area which is only accessible via the entrance to Bonds Lane car park but is clearly the loading bay of the Iceland supermarket in market square with additional parking spaces with it’s own boundary wall.

biggleswadetoday.co.uk/news/firm-may-not-be-able-to-restrict-parking-1-3560332

biggleswadetoday.co.uk/news/confusion-over-legality-of-aldi-parking-tickets-1-6878808

imgur.com/cPbMw2c

The operator is put to strict proof that they comply to all council orders and has proof that any and all land accessible through the entrance to the of the parking lot is owned by the landholder with whom they have an agreement.

3.BPA Code of Practice - further non-compliance - photographic evidence.

The BPA Code of Practice point 20.5a stipulates that:

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The parking charge notice in question contains two photographs of the vehicle number plate. Neither of these images contains a date and time stamp on the photographs.

The time and date stamp has been inserted into the letter underneath and pasted on top of the photograph showing the vehicle, however they do not appear to be embedded into the photographs. The images have also been cropped to only display the car and do not clearly identify the vehicle entering and leaving this car park, there is no proof of where these photographs have been taken, no identifiable landmarks or marking and no entry or exit signs. As these are not the original images, I require ParkingEye to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.