ParkingEye - payment app

J4Justice

I recently stopped at the Aire Street car park in Leeds ahead of a meeting in town. It stated I could pay by credit card at the entrance - the prominent sign - I downloaded the payment app but whilst registering the app crashed time and time again. I finally went to the pay machine to see if it accepted cards but cash only and I only had notes. So, I left the car park and parked at another car park that accepted credit card. The owner of the car that I was driving received a letter informing that I'd overstayed by 11 minutes/not paid and levied a £100 fee. I appealed on the grounds stated above but received a letter a while later advising that it was lodged by a 3rd party and my details, the driver were required. I resubmitted the appeal, providing my details and waited to hear back. I also included a screen shot of my phone showing the date that the payment app was downloaded (date of the fine) and also a parking ticket for the car park down the street, showing that I'd parked and paid elsewhere, by credit card, within 5 minutes of leaving the site. It seemed an open and shut case. The keeper has now received a letter advising the appeal has not been upheld and provided a POPLA reference to appeal. Surely the letter should be addressed to me now that they have all my details?

This is really stressful times for the keeper and I. From reading the posts I know that the £100 fine vs. fee of £3 I tried to pay won't hold water, but it feels like no one is listening to us.I need to appeal in the next few days (I know I'm leaving it late...I'm so scared and wondering whether to just pay the £100).

My case is a little different to thread=5736754 (sorry, I can't post links as a newbie) as I can demonstrate that I parked elsewhere and did download the app on the day in question, but would the same appeal, with the addition of my evidence be suitable? The thread doesn't state whether the appeal was successful.

Any help greatly appreciated. Thanks.

Coupon-mad

Why did you reply saying who was driving? Because they said so?!

The registered keeper appeals, not the driver, and NO-ONE here would have told you to reply to their fishing exercise wanting to know who was driving.

Anyway, yes to this. POPLA like evidence that the driver had to park elsewhere and the POPLA case could win:

My case is a little different to thread=5736754 (sorry, I can't post links as a newbie) as I can demonstrate that I parked elsewhere and did download the app on the day in question, but would the same appeal, with the addition of my evidence be suitable?

J4Justice

No, you're right, I didn't check here first. My wife was freaking out that she was being pursued and it seemed so obvious that it would be just cancelled. how wrong I was! Thanks for the advice

Coupon-mad

Show us your POPLA draft, copied and adapted from all the other ones. We don't want you writing your own version, albeit your evidence of parking elsewhere should be embedded in a point near the top.

J4Justice

Hi Coupon-mad, I'd really appreciate your critique of my first attempt...this will be submitted by the keeper, not the driver:




POPLA code: **********
Vehicle Registration: **** ***

On the **/**/****, I the registered keeper of this vehicle, but NOT the driver, received a Parking Charge Notice (PCN) dated **/**/****. An appeal was lodged with Parking Eye and a letter denying the appeal was subsequently received, dated **/**/****.




On **/**/**** the driver entered the Aire Street car park in Leeds with the intention of paying to park whilst attending an important meeting locally. The driver was aware !!!8211; based on information provided by myself prior to the journey !!!8211; that a payment app would be needed to pay conveniently. The driver, upon entering and eventually parking in the busy car park, downloaded the app and attempted to register to pay (evidence of this can be seen in picture 2, showing the date of download being the same as the date of the parking charge). Multiple attempts to register were made but the app crashed on each occasion. In frustration, and anxious about being late for the meeting, the driver visited the payment machine in the hope that payment could be made by credit card (the entrance sign (picture 4) !!!8211; the most prominent sign - advises that payment can be made !!!8216;at the machine or by phone!!!8217;) but only cash was accepted and the driver had insufficient loose change and notes were not accepted. After exhausting all efforts to pay, the driver left the car park !!!8211; an alleged stay of 11 minutes - and was forced to visit another local !!!8211; but less convenient !!!8211; car park (picture 1 shows the car park ticket purchased by the driver. The time on the ticket illustrates that the driver parked and paid !!!8211; by credit card !!!8211; within 5 minutes of leaving the Aire Street car park).





I contend that I am not liable for the alleged parking charge and wish to appeal against it on the following grounds:





The vehicle was not parked on the site


It merely entered the site, navigated the rough terrain, made multiple attempts to pay then left. At no time was any signage containing any !!!8216;terms and conditions!!!8217; obvious and no contract was entered in to. Contract was entered in to, within 5 minutes of leaving, at an alternative local car park that accepted the payment that the driver always intended to pay.



Grace period not long enough for the driver to perform necessary actions

The grace period allocated at this car park is inadequate and does not give the driver enough time to enter the car park, navigate the rough terrain and badly parked vehicles, find a suitable space, attempt to pay, get out of the car, lock the car, walk to the payment machine, decide not to park and navigate back out of the car park in to the busy street.





As mentioned above, the driver made multiple attempts to make payment by the payment app and payment machine without success. Quotes below are taken from the BPA Code of Practice October 2015 V6.

13.1 !!!8220;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.!!!8221;
13.2 !!!8220;You should allow the driver a reasonable !!!8216;grace period!!!8217; 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.!!!8221;
13.4 !!!8220;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.!!!8221;

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 !!!8216;grace!!!8217; periods and !!!8216;observation!!!8217; periods in parking and that good practice allows for this:

!!!8220;britishparking_co_uk /News/ good-car-parking-practice-includes-grace-periods!!!8221;

!!!8220;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!!!8217;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!!!8217;s conditions and either drive away or pay for a ticket,!!!8221; he explains.

!!!8220;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.!!!8221;

The ANPR photos on the PCN show an arrival time of xx:xx:xx and a departure time of xx:xx:xx !!!8211; an alleged duration of 11 minutes.

The car park is best described as waste land, with an uneven surface of loose gravel, stones and a pile of rubble (see picture 7) that disrupts the flow of traffic around the car park, meaning that vehicles unsuccessful in finding a space on the main row must attempt multiple-point turns in a narrow space then attempt again down an alternative track. If unsuccessful again, an additionally complex turning manoeuvre is required. Furthermore there are no marked parking bays resulting in cars being badly parked, even double parked, restricting access and meaning the driver must spend longer to safely navigate the site.





!!!8220;If you provide parking facilities to the general public for a fee, your system must allow drivers who have not paid the fee to leave a site within a reasonable period that allows for the conditions and environment of that parking site. This grace period should be long enough to allow motorists to leave without having their vehicle registration mark processed for a parking charge.!!!8221; (Page 19, section 30.2)

The Aire Street Leeds Car Park is extremely busy, being located beside Leeds City Railway Station and with a central position in the City. Taking both BPA 'Observation' and 'Grace' Periods into account, considering the type and location of this busy car park, 11 minutes is perfectly within scope of both the MINIMUM grace periods taken together and so I contend that the PCN was not properly given.


The Notice to Keeper (NTK) was not compliant with the Protection of Freedoms Act 2012 (POFA) and as such no keeper liability can be established.

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)
!!!8217;!!!8217;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;!!!8217;!!!8217;

This NTK stated that !!!8216;!!!8217;either!!!8217;!!!8217; there was not appropriate parking time purchased !!!8216;!!!8217;or!!!8217;!!!8217; the vehicle remained longer than permitted (neither of which are !!!8216;facts!!!8217;).
This NTK fails to describe those parking charges which they contend remain !!!8216;unpaid!!!8217; by the driver.


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'.

The signage is inadequate and unclear

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

!!!8220;If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.!!!8221; (AOS Code of Practice (Oct, 2015 v6), Page 10 section 18.5.)

There should be a sign which is fully readable without leaving the vehicle, there are zero (0) signs within the vicinity of the car park that are placed at closer to eye level, and were not obstructed by parked vehicles.

!!!8220;there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle!!!8221; (Page 18 Section 28.8)




One half of the car park perimeter is finished in rough, low level boarding, ending at/below bonnet height of the large 4x4 vehicle in question. Furthermore, no signage is provided !!!8211; or visible - along the entire perimeter fence (as shown in pictures 6 and 7). Due to its low height, any signage !!!8211; though I was unable to locate any !!!8211; would be obstructed by other parked cars and it would not be possible to be viewed from the vehicle. The car park was busy at the time of day in question.





No signage was visible upon entering the site (as shown in picture 3), however, on returning to take the included photographs a sign can be found, however, it is located at ground (pavement) level !!!8211; where it cannot be easily seen from the elevated seating position of a large 4x4 vehicle approaching the entrance at speed, on a busy approach road to the train station drop-off !!!8211; and is badly damaged/defaced making much of it illegible.





It is therefore 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 signage at the car park are sporadically placed and obscured and hidden in some areas by other parked vehicles and are not immediately obvious due to the height of the sign and 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.

This case is similar to the signage in POPLA decision 5960956830 on 02/06/16, 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:

!!!8220;The signage is not of a good enough size to afford the motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] in addition to 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.!!!8221;


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 terms of 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 the 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.

The driver was unable to read the signage due to its placement and small lettering, therefore they was unable to contractually bind into the agreement for parking with the parking operator.

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 !!!8220;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.!!!8221;

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


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

Coupon-mad

Surely the POPLA code was issued to you by name, in the rejection letter, not your wife? So you can't write as her, only you can appeal to POPLA, as driver now:

On the **/**/****, I the registered keeper of this vehicle, but NOT the driver, received a Parking Charge Notice (PCN) dated **/**/****. An appeal was lodged with Parking Eye and a letter denying the appeal was subsequently received, dated **/**/****.

It's a good POPLA appeal.

I would not have this in a PE case, unless yours was a non-POFA PCN (no 'POFA' on the back?):

The Notice to Keeper (NTK) was not compliant with the Protection of Freedoms Act 2012 (POFA) and as such no keeper liability can be established.

In any case, because you blabbed about being the driver, you can't use the POFA! Next time only the KEEPER appeals!

J4Justice

HI Coupon-mad, thanks for the feedback. As I mentioned in my original post, the appeal rejection was issued to my wife (I expected it to be issued to me as I appealed as the driver (and yes, blabbed!))


"The keeper has now received a letter advising the appeal has not been upheld and provided a POPLA reference to appeal. Surely the letter should be addressed to me now that they have all my details?"


I've not yet received any communication/acknowledgement that I was the driver or are being held liable. So should I respond as the driver instead if the rejection was issued to the keeper? Has my appeal actually been considered?


Also, re the NTK, if the keeper is appealing, is this still not appropriate (shall I remove the whole section?)


Thank you

Umkomaas

Once the driver, who is other than the registered keeper, has been identified to PE, they are required to reissue the charge in the driver's name (a Notice to Driver) and the RK taken out of the loop. If they haven't done this, they've screwed up.

In which case I would continue with the POPLA appeal in the name of the keeper and see where that takes you. I think PE might have inadvertently painted themselves into their own corner. Make no reference to their oversight at this stage.

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

J4Justice

Thanks Umkomaas, so I should submit, as-is, including the NTK section?

Umkomaas

J4Justice wrote: »

Thanks Umkomaas, so I should submit, as-is, including the NTK section?

Definitely including the NtK section. Let's see whether they spot the foul-up.