Parkingeye aire street leeds popla appeal

Mir-kat

Hi, I'm drafting a popla appeal on behalf of my hubby who recieved a parking charge notice from parking eye
.
The driver paid for 4 hours of parking, and recieved a pcn for a 12 minute overstay.

Unfortunately, i am a couple of days over the deadline of 28 days to appeal to popla. (I recieved a popla code from parkingeye after appealing using the blue text appeal)

Anyway i was just wondering if there is any point in appealing after the deadline? I've also posted my draft below please let me know if I've missed anything.

Sorry if i sound a bit incoherent, my 8 months old son is trying to eat the tablet im typing on

Mir-kat

Appeal re POPLA code: 606xxxxxxx – xxxxxxx xxxxxxx v ParkingEye Ltd

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 apologise for not submitting this appeal within the requested 28 days, however I understand from The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015, schedule 3 section 13(e)

Grounds to refuse to deal with a dispute
13.The body may only refuse to deal with a domestic dispute or a cross-border dispute which it is competent to deal with on one of the following grounds—
! (e) the consumer has not submitted the complaint to the body within the time period specified by the body, provided that such time period is not less than 12 months from the date upon which the trader has given notice to the consumer that the trader is unable to resolve the complaint with the consumer;

And since none of the other conditions are met in section 13, I respectfully request that you consider my appeal as the uk government has stated that alternative dispute resolution must be allowed for not less than one year from the date upon which the trader gave notice that they are unable to resolve the complaint.

I contend that I am not liable for this parking charge on the basis of the below points:

The Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the wording used.

ParkingEye have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with schedule 4 paragraph 9 of the Protection of Freedoms Act 2012

The PCN fails to identify the facts that caused a charge to arise and fails to describe
the unpaid parking charges that they allege were unpaid at the machine.

9(2)
’’The notice must -
inform the keeper that the driver is required to pay parking charges in respect of the
specified period of parking and that the parking charges have not been paid in full;

[c] describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;’’

This NTK stated that ‘’either’’ there was not appropriate parking time purchased ‘’or’’ the
vehicle remained longer than permitted (neither of which are ‘facts’).
This NTK fails to describe those parking charges which they contend remain ‘unpaid’ by the driver.



Grace periods were not applied

The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.

The CoP states:
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go.

13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the END of the parking period should be a MINIMUM of 10 minutes.

For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read " observe the signage terms, before paying.

Kelvin Reynolds of the BPA says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this:

britishparking[dot]co.u k/News/ good-car-parking-practice-includes-grace-periods

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

The ANPR photos on the PCN show an arrival time of 11:27:56 and a departure time of 15:40:05 – an alleged overstay of 12 minutes.

!The Aire Street Leeds Car park is a busy location which has a train station, popular shops and it is located in the city centre of Leeds. It is also an extremly rough uneven surface, littered with potholes and loose stones and gravel with no parking bays marked, making it difficult for a driver to manoeuvre safely and find a parking space.

The same arguments relating to difficulty in arriving are made as to the difficulty of leaving the car park at the end of any stay.

Taking both BPA 'Observation' and 'Grace' Periods into account, considering the type and location of this busy car park, 12 minutes is perfectly within scope of both the MINIMUM grace periods taken together and so I contend that the PCN was not properly given.


Inappropriate use of ANPR technology

Paragraph 21.1 of the CoP advises operators that they may use ANPR camera technology to manage parking in private car parks, as long as they do this in a ''reasonable, consistent and transparent manner''. The CoP requires that signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

These signs do not comply with these requirements because the car park signage failed to notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from the moment the car entered the car park. It is not stated that the cameras are not for security (as one would expect from a mere camera icon) but are there in order to calculate 'total stay'.

In fact, any reasonable driver would believe that the parking time would begin from the time on the ticket printed when parking was purchased by the driver.



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:

/imgur.com/a/AkMCN

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 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. !

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.

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.

Separately, I can find no trace of a decided planning application relating to the! Aire !Street !Leeds car park for the! ParkingEye signage and cameras. Assuming that indeed no planning application was submitted or approved, then the signs hold no validity even were they properly sized, properly legible and properly placed.
Regards

...

Redx

the code should be fine for up to 33 days but we dont recommend more than 30 days so definitely appeal it asap

add a clause about NO LANDOWNER CONTRACT too, although grace periods and POFA2012 should win

choose OTHER on the POPLA website and upload as a pdf

Mir-kat

Thanks for your reply, should i leave in the original paragraph apologising for being late? Or is it better to leave it out and not draw their attention to the fact that it is late?

And thanks for reminding me to add in the para about landowner contract, i knew i forgot something!

So im going to add in this point:

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

KeithP

Mir-kat wrote: »

...should i leave in the original paragraph apologising for being late? Or is it better to leave it out and not draw their attention to the fact that it is late?

Definitely leave it out.

Don't draw their attention to anything that you might have not quite done right.

Mir-kat

Thanks for the help guys, i submitted the appeal this morning, now just have to wait for a response

Mir-kat

Thanks for the help guys, I got a reply from popla on the 20th december and the appeal was successful ��

Mir-kat

Decision Successful

Assessor Name Jessica Lawton

Assessor summary of operator case

The operator issued the Parking Charge Notice (PCN) due to failure to make appropriate tariff payment.

Assessor summary of your case

The appellant states the Notice to Keeper is not compliant with the Protection of Freedoms Act (PoFA) 2012.
Further the appellant details that the operator has not applied a grace period.
The appellant states that the operator has no landowner authority and is therefore in breach of the British Parking Association (BPA) Code of Practice.
Further the appellant states that the signage on site is not prominent and the operator has made inappropriate use of Automatic Number Plate Recognition (ANPR) cameras.

Assessor supporting rational for decision

I have not been able to confirm the driver of the vehicle from the evidence and admissions provided by the appellant. When entering private land where parking is permitted, you are entering into a contract with the operator by remaining on this land. The terms and conditions of this land should be displayed around this area. It is essential that these terms are adhered to in order to avoid a Parking Charge Notice (PCN); it is the responsibility of the motorist to ensure that this is the case.
The terms and conditions of the site state, “Parking tariffs apply during the hours shown, 7 days a week… Failure to comply with the terms & conditions will result in a Parking Charge of: £100”.

It is evident that the operator is seeking to make use of keeper liability provisions as outlined within the Protection of Freedoms Act 2012 (PoFA 2012). Therefore, I must consider whether the Notice to Keeper sent to the appellant met the requirements laid out within this act.

Having considered the requirements of PoFA 2012 (Schedule 4, Paragraph 9(2)), I am satisfied that the Notice to Keeper sent to the appellant on 13 September 2017 does meet these requirements and this was sent within the “relevant period” outlined within PoFA 2012 Schedule 4, Paragraph 9(4) also. Therefore, I can only conclude that the operator has met the requirements of PoFA 2012, which entitles it to pursue the registered keeper of the vehicle for unpaid parking charges in the event it does not receive the full details of the driver within the period specified.

The appellant states that the operator has not provided an appropriate grace period as the driver only remained on site for an overstay of 12 minutes. For this reason, I have considered section 13 of the British Parking Association (BPA) Code of Practice. Section 13.1 states “Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.” Further, section 13.2 details “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.” Section 13.3 states “You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.” Further, section13.4 details “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.”

In this instance, I find it important to review the times in which the driver entered the site, made payment and the time the driver left the site following this, in line with the information displayed on the site regarding when the time for parking begins. The operator has provided photographs from its automatic number plate recognition (ANPR) cameras. These captured the vehicle entering the site at 11.27am and exiting at 15.40pm, which is a total stay of 4 hours 12 minutes. From the point of entry, the driver made payment for 4 hours parking at 11.33am.

Upon review of the signage, the terms do not explicitly state that the parking time begins upon entry. As such, I must assume that the parking session begins upon payment, if this is done within a reasonable period. I deem that 6 minutes after entering the car park a reasonable period. Therefore, 4 hours from the point of purchase is 15.33pm on the date of contravention. The exit time of the vehicle is 15.40pm some seven minutes from the point the paid parking expired.

I am not satisfied that the operator has allowed the driver a reasonable period to leave the private car park after the parking contract has ended, before it took enforcement action and therefore I do not conclude that the PCN was issued correctly. Accordingly, this appeal must be allowed.

I note that the appellant has raised further grounds for appeal, however as I have allowed the appeal on this basis, I will not review these in further detail.

Redx

PE failing to adhere to the BPA CoP yet again on clause #13 - grace periods

well done for sticking with it and costing them money

please post a summary in the popla decisions thread and add a link to this thread so others may benefit too

Coupon-mad

Well done to you!

It is tantamount to a crime, certainly an unfair business practice, that PE pretend that a 'parking' contract actually starts on arrival, unbeknown to any driver. Especially in PDT car parks where clearly the point of sale/contract is when the money goes into the machine, and the ticket that spews out even gives the time from then.

You bought 4 hours and returned in time, then left. PE should be ashamed, but they are not.

Umkomaas

I think this ‘chancing’ by PE has become so prevalent that Trading Standards should be looking at this.

@OP - are you up for writing a letter referring this sharp practice to your local Trading Standards? They were happy to chance their arm to screw £100 out of you. They are the professionals, so they would know full well that you’d done nothing wrong, yet they still tried to scam you.