Holy Trinity Church Newquay

Fruitcake

This is your initial appeal to parking lie so you need to tell them who is appealing. That would be the keeper.

When you get to PoPLA you can include any evidence you like. Just remember that private parking companies tell lies and Parking Lie told lies in court. That's why they are known as parking lie.

The whole purpose of the initial appeal is to get PoPLA code without giving away the driver's identity (and to let the scammers know you are getting forum help.) It's not designed for you to show your hand at this stage so just follow the advice. Copy and paste and send, or in your case, add the one liner about POFA.

TalkGirl_uk

Thanks Fruitcake, thank you for the reassurance. I thought the line at the bottom was a case of trying to scare you into showing everything when in fact i don't want to just yet. So thanks for confirming.

Fruitcake

TalkGirl_uk wrote: »

Thanks Fruitcake, thank you for the reassurance. I thought the line at the bottom was a case of trying to scare you into showing everything when in fact i don't want to just yet. So thanks for confirming.

That is precisely what they are trying to do. They bully and lie, and lie again because all they want is your money.

TalkGirl_uk

Shock horror!! ParkingEyes have rejected my appeal! So I am now the proud owner of a POPLA code.

So i am guessing my next step includes going through the Newbies posts and putting an appeal pack together! With the non-compliant PCN what specific points do i need to include for this?

Redx

include poor and inadequate signage that fails the BPA CoP etc , no contract with landowner , any other BPA CoP errors , NTK errors , POFA2012 failures (timescales to get the NTK to the keeper being exceeded so keeper not liable) , not the same as the BEAVIS case , etc

and add any evidence such as pictures you have taken, proof they failed any of the pointers , embed into a pdf document and then submit the appeal and also upload the pdf and evidence once its approved for submission to POPLA

use post #3 of the NEWBIES sticky thread to draft your appeal

Fruitcake

Do exactly as Redx says, but show us your draft for comments before submitting it.

TalkGirl_uk

Okay so i am just finishing off our appeal but have a few questions regarding the signage. Having read CouponMad's long template on the signage I am really not sure how much to include. In my previous appeal i was able to go to service station in question and have a look at the signs myself but considering Newquay is 8hours away I'm a little stuck with what specifics to include. We have had a look on google maps and can see that positioning isn't great but i cannot confirm what the visibility/letter font/specifics are on the signs. What would you suggest including in this section of our appeal if we are unable to confirm the points being raised are true or not?

Redx

slag them off anyway as its their job to prove their signage meats contractual laws and the BPA CoP , so put them to strict proof on all counts

ie:- what you think is irrelevant , its what they can prove is lawful and above board that counts , and the vast majority of signs in the uk fail the basic tests on signage, the BEAVIS case was one of the few exceptions which is why PE pursued that case all the way to the SUPREME COURT

so find a RECENT 2017 newquay APPEAL and adapt it

Umkomaas

I am really not sure how much to include.

All of it.

In my previous appeal i was able to go to service station in question and have a look at the signs myself but considering Newquay is 8hours away I'm a little stuck with what specifics to include.

PM IvorPeCheque on here (do a search on members to find him). He's a local who is active in the area on private parking charges. Ask if he has copies of existing photos of the signage, or whether he wouldn't mind helping in that regard. He is extremely helpful.

Alternatively, you could post on 'Newer Newquay' Facebook page and ask for help there. They hate PE and Smart Parking who are doing between them more to turn tourists away from Newquay than even the foul British weather!

https://www.facebook.com/groups/NewerNewquay/

TalkGirl_uk

Okay so one POPLA appeal draft:

Dear POPLA,

On the XXXXX, ParkingEye Ltd. issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “…either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted…”!

As the registered keeper I wish to refute these charges on the following grounds:
1) The Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012
2) The operator failure to adhere to the British Parking Associations (BPA) Code of Practice Grace’ Periods
3) The amount being claimed is not a genuine pre-estimate of loss to the operator or the landowner
4) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
5) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver
6) ANPR Accuracy and Compliance!

1) The Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012 (POFA)

To support this claim further the following areas of dispute are raised:
• The NTK was not not served within the required 14 days to transfer keeper liability
• The NTK fails to identify the facts that caused a parking charge to arise

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met as outlined in paragraphs 5, 6, 11 & 12. ParkingEye Ltd. have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK, as outlined within paragraph 9. Specifically, they have failed to include the mandatory timeline and wording:
The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

This appeal would like to specifically highlight subsection (b) as the received NTK was delivered by post. Furthermore, paragraph 9 (5) defines a relevant period as “..the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent appellant arrived 15 days after the alleged event. Therefore, this serves to highlight that ParkingEye Ltd. have failed to act in time for keeper liability to apply. As a result, the appellant is not liable for any charges, as the Notice to Keeper has not been properly ‘given’ under the Protection of Freedom Act (POFA) 2012.

To offer further context to this point, ParkingEye Ltd. has also omitted the following wording from paragraph 7 (2), of schedule 4, of POFA 2012:!
’The notice must –
(a) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose…and the other facts that made those charges payable…

Upon receiving the Notice to Keeper it lacked any description detailing the parking charges owed from the alleged extended stay and failed to identify the ‘creditor’ to whom payment was being made. Specifically stating that ‘’either’’ there was not appropriate parking time purchased ‘’or’’ the vehicle remained longer than permitted, neither of which is a ‘fact’. The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

2) Failure to adhere to the British Parking Associations (BPA) Code of Practice ‘Grace’ Periods

The BPA Code of Practice clearly highlights within section 13 that a company’s approach to parking management must allow a vehicle “…a reasonable period without having their vehicle issues with a parking charge notice.” Subsections 13.2 and 13.4 offer further clarification stating that
13.2 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.
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.

Upon receiving the Parking Charge, the document described the vehicle as merely entering the car park at 19:27 and merely leaving at 20:37. The BPA sets a minimum of 10 minutes just to leave, not a maximum grace period. As Kelvin Reynolds of the BPA quoted in the news article ‘Good car parking practice includes ‘grace’ period’: “…there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.” To briefly summaries his definition, an observational period must include sufficient time for a motorist to park, observe the signs, make a decision as to whether they wish to comply with the conditions and pay.

The total time from arrival to exit was 1 hour and 10minutes. Sufficient parking was purchased for 1 hours worth of parking (appendix a), from 19:30 to 20.30 of the day of the alleged event. That demonstrates a three-minute period from arrival to the driver purchasing a ticket and a seven-minute period for the driver to vacate the site from point of ticket expiry. It is clear from the evidence that ParkingEye Ltd. have failed to uphold and consider the necessary grace periods set out in the BPA Code of Practice, as the total time within the car park does not allow for the driver to make the necessary observations, as highlighted by Kelvin Reynolds above, nor allow the necessary grace period for leaving the car park.

3) The amount being claimed is not a genuine pre-estimate of loss to the company or the landowner

The demand for a payment of £100 as noted within the Parking Charge is unreasonable and exceeds any appropriate amount of loss suffered by the Landowner. There was no damage nor obstruction caused, so there can be no loss arising from the incident.!

In this case ParkingEye Ltd. has failed to provide any calculation to show how the £100 penalty charge was arrived at, and whether it is an actual or pre-estimated loss. Given that ParkingEye Ltd. charge the same fixed charge to any alleged breach of contract (whether serious/damaging, or trifling in this case), and that the claimed £100, with 40% discount for prompt payment, is the maximum penalty allowed without prior justification to the BPA (section 19.5 & 19.6, BPA Code of Practice), it is clear that there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss and that ParkingEye Ltd is exploiting section 19 of the BPA code of practice.Under section 19 of the BPA Code of Practice it states the following:!
19.2 In the Code ‘parking charges’ means charges arising from enforcement under three different circumstances:
• When a motorist breaks the terms and conditions of a parking contract
• When a motorist trespasses by parking without permission
• Agreed charges that are advertised in the contract

Based on the information offered it would suggest that the figure being demanded is not a genuine pre-estimate loss earning due to the fact that operational costs, such as the installing and the maintenance of equipment should not be included.

4) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

It is suggested that ParkingEye Ltd. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that ParkingEye Ltd. be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

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

5) Signage does not comply with the BPA Code of Practice and were not prominent, clear or legible from all parking spaces to form any contract with a driver

The BPA Code of Practice clearly states that:!
18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.

Baring this paragraph in mind, there was categorically no contract established between the driver and ParkingEye Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. When the driver arrived at the car park it was in the hours of dusk and therefore impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located and the terms and conditions illegible.

As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this 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:

http://imgur.com/a/AkMCN

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 and poorly placed – particularly to a driver entering the site – with no lighting. In fact, some signs are obscured and hidden in some areas with large areas of the car park without visible signs. The signs 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.!In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

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 the majority 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 operator’s 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.!

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As further 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.”

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 an example of a binding case law from the Court of Appeal offers further supports my argument:

http://www.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.

Based on these points, it is believed that ParkingEye Ltd. are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions, driver safety and ensuring the appropriate illumination of signs. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, request that ParkingEye Ltd. be required to provide strict proof of exactly where the car was parked (from photos taken in the same lighting conditions) and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date, time and lighting condition of the alleged event. I submit that full terms simply cannot be read safely from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. In addition to this, it is requested that any neighbouring signs to the entrance and vehicle parking location to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted or the driver misinformed.

6) ANPR Accuracy and Compliance!

Considering that ParkingEye Ltd. is suggesting that the driver allegedly overstayed 10 minutes (above the 60 minute paid parking time) I call into question the ANPR system accuracy. The time of 10 minutes is so minuscule that it would require an ANPR system with almost perfect manufacturer-stated accuracy.

Therefore, I require the Operator to present records which prove:
• The Manufacturers' stated % reliability of the exact ANPR system used on this site
• The dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images, and by whom.

These documents are fundamentally important as the entirety of the charge is being founded on two images purporting to show my vehicle entering and exiting at specific times. Even with a firm understanding of probability laws, ParkingEye Ltd. expects me to believe that their system has a zero failure rate and zero buffering delay. Therefore, ParkingEye Ltd. must be expected to produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system previously ruled against. In the case of ParkingEye verses Fox-Jones on the 8th November 2013 the case was dismissed by the Judge, ruling that the equipment was “…fundamentally flawed...” on the basis that the synchronisation of the camera pictures and the time had been called into question. The Operator was unable to rebut the claim.!

Considering this case, it is believed that a local camera captured the image via a remote sever and then added the time stamp. As the two separate components are disconnected by the internet and do not share a common ‘time synchronisation system’, there is no proof that the time stamp included on the images is an actual representation of the exact time the image was captured. Furthermore, as the Operator appears to use WiFi the ANPR system succumbs to a buffering delay when receiving information, suggesting that “live” data is not really live but a delayed response. Therefore, without a synchronised time stamp there is no evidence that the image is ever truely time stamped accurately. Therefore, I contend that any ANPR ‘evidence’ put forth by ParkingEye Ltd. is as unreliable.

In summary, these points demonstrate the claim by ParkingEye Ltd is invalid and should the claim continue, further action and evidence requested in this appeal is required from ParkingEye Ltd.