ParkingEye PCN, did not keep ticket for proof

EpicBox

Alright guys, if you could just give one final look over this before I submit my appeal to PE in the first instance, that would be much appreciated.

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.

There will be no admissions as to who was driving and no assumptions can be drawn. As the parking charge notice was delivered more than 14 days later than the day after the date of parking, you have not adhered to the Protections of Freedoms Act 2012 and therefore have no right to obtain the name of the driver. You must provide me with a POPLA code or cancel the charge as soon as possible.

Should you have obtained 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,

Thanks again for all your assistance.

(I didn't actually see anything involving a threat of court action in the PCN - do I need to worry about that if I'm mentioning it in my appeal?)

Redx

firstly , remove the references above (I dont think you have got the hang of posting on a public forum so far - clue , ANONYMITY)

and there is nothing in there about GRACE PERIODS either

the last 2 paragraphs threaten a court case if those terms are breached (read what you have copied and pasted)

no parking company is going to tell you on a pcn what you might be able to sue or countersue them for

EpicBox

What I meant was, the template accuses PE of threatening court action, but I didn't see any mention of court on the PCN.

I think I've managed to remove any incriminating references from my posts.

How's this for a section about grace periods?

The BPA Code of Practice states:

"You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action."

It additionally states:

"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."

At a total of 13 minutes, the alleged overstay does not exceed a 10 minute ending Grace Period in addition to a reasonable grace period to read and understand the signs before the commencement of the contract.


(Personally I think this is too easy to counter-argue so please improve it if you can.)

Redx

the template does not say that at all !!

but the inference would be that failing to pay the pcn MAY result in court action (being sued) to recover the charge on the invoice, this is true of any invoice you receive. plus I can assure you that they will issue a court case if this pcn is ignored, they issue over 25 thousand per annum !!

and the BPA CoP does indeed say that , so you are quite right to argue the case in the way you have done

remember , they have to PROVE to popla (or a court) that their charge is valid , to make it stick

clearly they have failed the BPA CoP , which they signed up to and is a mandatory agreement in order to have a KADOE contract with the DVLA

as the newbies thread , plus the template tell you , the aim is to get either a cancellation or a popla code

methinks you have spent enough time on this early stage , because the template could have been used "as is" , so I think that YOU are overthinking it !!

so add the 2 together and get it submitted as KEEPER on their website , asap (no more faffing around) lol

Coupon-mad

None of that is needed, because the keeper wins a non-POFA PCN as long as they don't choose 'driver'.

You could have written that the driver was a walrus who couldn't read the signs, and still won at POPLA!

Guys_Dad

Coupon-mad wrote: »

You have a GOLDEN TICKET! Of course you will win if you don't say who was driving!!

You do not even need to mention Grace Periods - the keeper wins this appeal. Told you already:



So easy. You will win at POPLA; you will pay nothing.

Love Golden Tickets from PE!

As c-m wrote the NEWBIES thread and, I believe, the standard appeal therein, when she advises as above, please use your head and do what she says. You have ignored all the good advice you have been given.

EpicBox

Alright guys I got my POPLA code.

Do you think I will be OK to just appeal on the basis of 1) they can only charge the driver and 2) they cannot prove who was driving?
I have an appeal drafted that covers these 2 points (copied from elsewhere in the forum and made sure it matches my case circumstances).
Do you think I should also add more arguments as backup?

- Grace periods
- Lack of authority to form contracts
- Breach of consumer rights act
Should I spend any more time forming arguments based around those or will I be safe with my 2 points above?

Sorry if I'm asking dumb questions. I suffer from anxiety and I'm not used to this stuff.

Thanks again.

Redx

yes, definitely !!!

and grace periods was your main appeal point , so should be number one of several , or number 3 seeing as they failed POFA2012 anyway

you only have to win on one single point , they have to win on all points , so the more points you have , the greater the chance of having ONE winning point

Coupon-mad

Not just a single point, not if you are an anxious person. You need balls of steel to try a single point appeal to POPLA!

Why not adapt this 'ParkingEye Golden ticket' one (post #4) and add the grace periods stuff from another one you can find easily, that covers the BPA Grace period rules?

https://forums.moneysavingexpert.com/discussion/5711814

EpicBox

Right. Appeal drafted. At the minute I have elected not to include the part about how the charge is a penalty, because from looking at other cases on this board I have only seen that be successful in cases where it was a FREE car park, not a paid one where the driver overstayed. In fact, in paid cases I've seen admins suggesting not to use that argument, because "POPLA don't get it".

By the way, I did not include anything about grace periods in my initial appeal because one of you mentioned that it just wasn't necessary.

So without further ado, here is my POPLA appeal. Feedback will be appreciated.

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I was NOT the driver. I contend that I am not liable for this parking charge on the basis of the below points:

1)ParkingEye’s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.
2) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.
3) 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.
4) The signs are not prominent, clear or legible from all parking spaces.

1) ParkingEye’s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

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 must be met as stated in paragraphs 5, 6, 11, and 12. ParkingEye have failed to fulfil the conditions which state that an operator must have provided the keeper with a Notice to Keeper (NTK) in accordance with paragraph 9, which stipulates as mandatory, a set 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.”

The applicable section here is (b) because the Parking Charge Notice/NTK that I have received was delivered by post. Furthermore, paragraph 9(5) states:

“The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended”

The Parking Charge Notice sent to myself as Registered Keeper was produced in their offices showing a purported ‘date issued’ which was already past the 14 days by which, under statute, it had to be in my hands/served. Even if they had posted it that day (which ParkingEye never do in any case at all because they do not put letters in the postal system for several days, due to their batching of mail using a third party before it reaches the Royal Mail system) it would be impossible for the notice to have been delivered within the ‘relevant period’ as required under paragraph 9(4)(b).

In fact, this NTK arrived over three weeks after the alleged event. This means that ParkingEye have failed to act within the 14 day relevant period.

Furthermore, it is clear that ParkingEye know this because they have used the alternative version of their template ‘Parking Charge Notice’ – the one with a blank space near the bottom of page one and no reference to ‘keeper liability’ or the POFA.

So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was, which brings me to point #2:

2) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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.

In this case, no other party apart from an evidenced driver can be told to pay. 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 parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported ‘NTK’ was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator 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.

Furthermore, 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.”

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against 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 need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.”

3) 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 only 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." The signage 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 into the car park at <start time> and driving out at <end time> on the same date. ParkingEye has a record of the fact that 1 hour of parking time was paid for, as this is shown on their website, as demonstrated by the following screenshot.

[Screenshot]

In their appeal rejection letter, ParkingEye state that “insufficient time was paid for on the date of the parking event.”

On the day in question there was only one ticket machine in operation and there were other people using it, causing the driver to have to wait in a queue. The instructions on the ticket machine were small, and upon realising that the machine required the vehicle registration to be manually entered, the driver had to return to the car for a reminder of the exact order of the characters before the ticket could be obtained. In addition on exiting the car park, due to the date being at the height of the holiday season, the exit roads were congested and the driver had to queue to leave.

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 car park exceeded the paid period by only 13 minutes, a sum of 4 minutes prior to purchasing a ticket, and 9 minutes after the parking period had ended. These few minutes are well within what an ordinary independent person assessing the facts would consider reasonable.

4) ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue ‘tickets’ as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence.

I require an unredacted, contemporaneous copy of the landowner contact (including the User Manual which forms a vital part of that contact). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods, the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £100.

I do not believe that the contract allows ParkingEye to charge paying visitors £100 for a system or keypad error. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.

Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:

The written authorisation must also set out:
a) The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs
e) The definition of the services provided by each party to the agreement.

4) The signs are not prominent, clear or legible from all parking spaces.

The signs and the machine tariff board (and the small screen itself on the machine) were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:

(LINK)

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.

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)

The terms appear to be displayed inadequately at the machine, where only the tariffs are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size going by this guide:-

(link)

As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
(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:-

(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.

END