Parking Eye Tower Road POPLA appeal

sinister1

Hi all I wonder if you can help.

I have received a PCN for being within the car park for 2h 13m, yet only buying a ticket for 2 hours.

I have done the template appeal to PE who obviously rejected. I was just wondering whether I should focus the POPLA appeal on not being given reasonable time to vacate the car park. We were heading on the long journey home and everyone was quickly fed and watered before leaving.

Any help would be hugely appreciated as the more I am reading on here the more confused I am getting!

Thanks!

Coupon-mad

Yes, search the forum for:

'POPLA ParkingEye Grace Periods tariff Kelvin' (or words like that) and you should find a winning one written earlier this year. Don't look at older ones, nothing older than late 2016, and you want Kelvin Reynolds words in it as well as the BPA CoP.

Show us your draft (long appeal) based on another one from recent months. Pretending that a driver is liable for an alleged 'overstay' of 13 minutes all told, either side of a 2 hour tariff payment, is NOT acceptable. This is not OK.

There are two grace periods in the BPA Code of Practice, before and after paying/parking. When you win this at POPLA, I really think more people should sue ParkingEye for trying this scam, it's clearly not within the Grace Periods rules and they had no reasonable cause to get your data from the DVLA.

ParkingEye are a pariah, a boil on the bum of UK Society, and if my relatives ''worked'' for them I would be deeply ashamed.

sinister1

Thank you so much Coupon-mad, I have trawled the numerous appeals and have hopefully cobbled together something which could save us from this unreasonable charge. It was only when I went back and checked the ticket we bought that I noticed it only had the time of issue, not the time of departure which seems a little iffy...

Please could you take a look at the following and let me know if I have included all of the necessary points?

I am writing to challenge a parking charge notice received for parking at the Tower Road, Newquay car park on 21/04/2017. This car park is run by ParkingEye Ltd.

To protect the driver, they have not been named.

My appeal as the registered keeper is as follows:
1. Insufficient grace period
2. No evidence of Landowner Authority
3. Inadequate signage


1. No period of grace given for the driver to read the additional signs within the car park, or to exit the car park following the parking period.

This matter appears to flow from an allegation of 'overstay' of a mere 13 minutes, despite the fact this is not an overstay at all and is unsupported by the BPA. The paid for parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which the parking ticket was purchased or at which it expired.

The BPA Code of Practice (13.2) states that parking operators "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." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park.

Kevin Reynolds, Head of Public Affairs and Policy at BPA states that:

‘There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

“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.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”’

In addition, the BPA Code of Practice (13.4) states that the parking operators “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.”

During a BPA Professional Development and Standards Board meeting in July 2015 it was formally agreed that relevant changes to the Code of Practice would be made to ensure compliance with the DfT guidelines regarding grace periods.

“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

The driver of the car at the time was captured by ANPR cameras driving in to the car park at 11:25:13 and driving out at 13:39:00 on the same date. Although no mention is made of any ticket purchase on the NTK, ParkingEye have since acknowledged that a ticket was purchased at 11:28 for 2 hours of parking, which expired at 13:28. In their appeal rejection letter, ParkingEye state that “insufficient time was paid for on the date of the parking event.”

It is very clear from the evidence that ParkingEye have failed to uphold the minimum grace periods set out in the BPA Code of Practice, as the total time in the carpark exceeded the paid period by only 13 minutes, a sum of 3 minutes prior to purchasing a ticket, and 10 minutes after the parking period had ended.

By any stretch of the imagination, these few minutes are well within what an ordinary independent person assessing the facts would consider reasonable. In fact this case demonstrates significant unreasonableness on the part of this notorious parking operator who appear to be attempting to get more and more 10/11 minute false 'overstay' allegations past POPLA this year, ignoring their Trade Body rules from the BPA.

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 - 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


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

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.

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 notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only.

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.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. 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 which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

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.''

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, approximately. 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.

''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.''

''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 terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, 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 (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) 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 judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case.

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.

Therefore it is respectfully requested that this parking charge request appeal be upheld on every point.

Yours faithfully

Umkomaas

You should consider adding the following:

1. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (There's a ready-written template with this as the header in post #3 of the sticky thread. Just copy and paste it in).

2. Dismantling of the PE v Beavis case in the context of your parking event in a pay and display car park (the Beavis case was in a free car park). PE will undoubtedly throw this heavily into the mix, so anticipate it and on a pre-emptive basis build this into your appeal. Do a search on other recent PE POPLA cases to find a suitable block of text on this - especially focusing on the pay and display issue.

HTH

sinister1

Thank you for your response, Umkomaas. I have amended the appeal to add that I was not the driver. I hope this will help!

The operator has not shown that the individual who it is pursuing is in fact
liable for the charge.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must
first consider whether they are confident that the Assessor knows who the driver is,
based on the evidence received. No presumption can be made about liability whatsoever.
A vehicle can be driven by any person (with the consent of the owner) as long as the
driver is insured. There is no dispute that the driver was entitled to drive the car and I
can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to
pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout
(as I am entitled to be), and as there has been no admission regarding who was driving,
and no evidence has been produced, it has been held by POPLA on numerous occasions,
that a charge cannot be enforced against a keeper without a POFA-compliant NTK.

The burden of proof rests with the Operator, because they cannot use the POFA in this
case, to show that (as an individual) I have personally not complied with terms in place
on the land and show that I am personally liable for their parking charge. They cannot – they
will fail to show I can be liable because the driver was not me.

The vital matter of full compliance with the POFA was confirmed by parking law expert
barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-

Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain
conditions are strictly complied with, it provides for recovery of unpaid parking charges
from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a
vehicle is the driver. Operators should never suggest anything of the sort.
Further, a failure by the recipient of a notice issued under Schedule 4
to name the driver, does not of itself mean that the recipient has accepted that they
were the driver at the material time.

Unlike, for example, a Notice of Intended Prosecution where details of the driver of
a vehicle must be supplied when requested by the police, pursuant to Section 172 of the
Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name
the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not
generally pass."

No lawful right exists to pursue unpaid parking charges f
rom a keeper, where an operator is NOT attempting to transfer the liability for the
charge using the POFA. This exact finding was made in a very similar case with the same style NTK
in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:

"I note the operator advises that it is not attempting to transfer the liability for
the charge using the Protection of Freedoms Act 2012 and so in mind, the
operator continues to hold the driver responsible. As such, I must first consider
whether I am confident that I know who the driver is, based on the evidence
received. After considering the evidence, I am unable to confirm that the
appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator
has failed to demonstrate that the appellant is the driver and therefore liable
for the charge. As I am allowing the appeal on this basis, I do not n
eed to consider the other grounds of appeal raised by the appellant. Accordingly, I
must allow this appeal."

I have struggled to find some wording on the pay and display so am hoping I can succeed on the grace period and not being the driver.

sinister1

Thank you once again for your invaluable help. We have won the appeal against the ticket. Will definitely be wary of PE car parks in future!

Coupon-mad

Brilliant!

Can you post the decision in POPLA Decisions at the top, please, with a link to this thread and mentioning which PPC you beat!

If POPLA actually had to make a decision please copy it out, or did the PPC throw in the towel?!