ParkingEye Welcome Break - POPLA

miltwin

Hello

Just trying to get clarity and see through all the mountain of posts/advice/examples/appeals that run through this extremely helpful forum. Stripping out any specific details……

I parked in the lorry park at a Welcome Break in August in the early hours. Fell asleep as knackered and stayed for over 5 hours, before driving off at 7:00am. Didn’t see any parking info signs amongst the sea of lorries and certainly none next to where I was parked. Didn’t take any pictures. Got a ‘charge notice’ from ParkingEye a couple of weeks later which states ‘car park’ specifically.

The keeper of the van didn’t want to get involved despite my attempts so I’ve, reluctantly, had to give up the advantage of being a non-named driver.

I appealed to PE (letter below) who have rejected it and issued a POPLA Reference. Also the usual standard letters arrived which give standard replies to my queries…. I’ve scanned them and attached.

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Without prejudice, except as to costs



Parking Charge Notice - Notice to Keeper [xxxxxxxxxx]


This letter is a formal challenge to the issue of your ‘Parking Charge Notice - Notice to Keeper’ as set out in the current BPA Ltd AOS Code of Practice B.22.

On the xxxxxxxx, I was the driver of a xxxxxxx van, registration number xxxxxx.

Firstly, the ‘Parking Charge Information’ on your notice is wrong. It clearly states, a number of times, that the vehicle entered and stayed in the car park for longer than two hours. In actual fact the vehicle never stayed in the car park at all. As the vehicle is a large van, which doesn’t fit into standard-size parking spaces, the lorry park was used instead. Therefore, I consider your ‘Parking Charge Notice - Notice to Keeper’ invalid and deny any liability.

If you choose not to cancel this PCN, I should be grateful if you would also answer all the questions and deal with all the issues I have set out below. Once you have done so, I will be able to make an informed decision on how I deal with this matter.
I should be grateful for specific answers to all questions raised. In this respect I remind you of the obligations set out in the current Practice Direction on Pre-Action Conduct.


1. Your parking charge amount claim.

Please explain on which of the following grounds your claim is based:

(i) Damages for trespass
(ii) Damages for breach of contract
(iii) A contractual sum


2. Your loss.

If it is your case that a trespass was committed, or that a contract was breached such that your claim is one for damages, please give me a full breakdown of the actual losses which evidences that this parking charge is a true reflection of the damages caused solely by the alleged parking contravention.


3. Your status – the creditor.

Your ‘Parking Charge Notice - Notice to Keeper’ simply mentions ‘ParkingEye Ltd’. Please tell me who is the actual creditor making this £100 parking charge demand? I need to know exactly who is making the claim and in what capacity.


4. Signage.

I did not see any signage in the lorry park indicating a parking charge.

If it is your case that a contract has been breached or that a contractual sum is now due, please send me photographs of the signs that you display and upon which you seek to evidence that a lawful and legally enforceable contract was been entered into. Please ensure that the photographs show the terms and conditions in a clear and legible manner. Please provide me with a diagram showing the locations and layout of those signs at the lorry park. Also provide evidence that the wording is in plain and intelligible language and in sufficiently large print as to be legible to a driver at the lorry park’s entry point, as established in ‘ParkingEye Ltd v Beavis’, which is fully distinguished.


5. Ownership of premises.

Please tell me who owns the lorry park as I wish to send them a copy of this letter.


6. Contractual Authority (as required by BPA Ltd AOS CoP B.7)

Please provide me with a copy of the contract between your company and the landowner/landholder that provides the necessary contractual written authority for the issue and enforcement of your ‘Parking Charge Notice - Notice to Keeper’.


7. Summary

I look forward to receiving your acknowledgement within 14 days and, as there are no ‘exceptional circumstances’, your comprehensive reply within 35 days (in accordance with the BPA AOS Code of Practice B.22.8). I will then be able to make an informed decision as to how I deal with your ‘Parking Charge Notice – Notice to Keeper’.

If you reject this challenge, fail to cancel this PCN, or fail to address the issues that have been raised, then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information, including the necessary ‘POPLA code’, so that I may immediately refer the matter for their decision. Further, I require, with your rejection letter, all images taken of this vehicle & the signs at the location that day. Do not withhold any images or data later relied on for POPLA/court.

If you fail to follow any of the procedures outlined in the BPA AOS Code of Practice or your legal requirements under the Protection of Freedoms Act, or the requirements of the Practice Direction on Pre-Action Conduct, then I will make a formal complaint to the DVLA Data Sharing Policy Group, D16.

Service of any rejection letter/POPLA code and/or legal documents by email is expressly disallowed. All responses to me from this point on, must be made by post. Regardless of any MCOL online/email system, service of any court claim must only be made by first class post to the latest address provided by me.

Please Note: Unless you have specifically requested it and received my express permission, you do not have my authority to disclose or refer this letter or any other communication from me to any other person or organisation.

Yours

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So now onto the POPLA appeal. Was thinking of adapting this post, losing the grace period bit etc and highlighting the signage issue.

forums.moneysavingexpert.com/showthread.php?t=5898533#15

Any help and advice or pointers much appreciated.

Sorry, as a new user I can't post direct links.

Cheers

dropbox.com/s/gr53vavfyyc2xeg/PE_Appeal%20reply_01.jpg?dl=0
dropbox.com/s/kqiesgzhs6wi98v/PE_Appeal%20reply_02.jpg?dl=0
dropbox.com/s/pllcgjdyb8irbar/PE_Info_01.jpg?dl=0
dropbox.com/s/wz1uvg2lp2zbsdr/PE_Info_02.jpg?dl=0
dropbox.com/s/g88m2f80ba0ok85/PE_Info_03.jpg?dl=0

miltwin

Very busy forum but, bump!

Am going on signage. Google shows no signs where I was parked and, what could be signs, are buried in a sea of lorries. I can't go mooching about in the dark.

Though I don't recall seeing it, there's a board on the entrance road to the lorry park. Even if I'd seen it, I can't stop by the entrance sign as I drive in.

Cheers

KeithP

Delete the 'without prejudice...' sentence.

nosferatu1001

Keith - that was their appeal to PE, not POPLA. Its already gone. Pretty stupid to put that in an appeal, of course. Ah well.

As for POPLA - just show us your draft appeal. Youre not going to have people follow lots of links. Just paste it here - not from word.

Why not also include standing to sue? Its on every appeal for a reason.

Mackers12

I've had some very shoddy dealings with WelcomeBreak, and have evidence of them intentionally lying. I'm involved in a similar situation (except the driver took a nap during the day in severe weather, in a quiet corner of the car park area). Other than the Popla appeal, I can pass along some sound advice I received. If you haven't already, try emailing WB, explain the situation, noting that MSAs are there as a REFUGE for tired drivers, that this was early morning and empty, and ask them to cancel? Which WB is it? I suspect they won't cancel but better to make this attempt now.

miltwin

Here's my POPLA appeal draft. I'm also going to email Welcome Break themselves. Hopwood by the way.

How do I incorporate 'standing to sue'?

Thanks again for any advice.



POPLA Appeal letter

Appeal re POPLA Code: [XXX] v ParkingEye
Vehicle Registration: [XXX]
POPLA ref: [XXX]

I, now the registered keeper of this vehicle, received a letter dated [XXX] acting as a notice to the, then, registered keeper. My appeal to the operator, namely ParkingEye, was submitted and acknowledged on [XXX] but subsequently rejected by a letter dated [XXX]. I contend that I am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1. I wasn’t parked in the ‘car park’

2. The lack of sufficient signage throughout the parking area in question

3. No contract was entered into between the Parking Eye and the driver or registered keeper

4. No evidence of landowner authority

5. No evidence of period parked

6. ANPR Accuracy and Compliance



1. I was never parked in the ‘car park’.

The ‘Parking Charge Information’ on the ‘Notice to Keeper’ is simply wrong. It clearly states, a number of times, that the vehicle entered and stayed in the car park for longer than two hours. In actual fact the vehicle never stayed in the car park at all. As the vehicle is a large van, which doesn’t fit into standard-size parking spaces, the lorry park was used instead.


2. Poor and inadequate signage.

I never saw any signs.

BPA’s Code of Practice 18.2 states:

“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.”

18.3 states:

“Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm. “

18.4 states:

“If you intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give ’adequate notice’. This includes:
• Specifying the sum payable for unauthorised parking
• Adequately bringing the charges to the attention of drivers, and
• Following any applicable government signage regulations.”

A single, badly lit sign, with small lettering which is difficult to read and understand, can be seen on the entrance road to the lorry park. It cannot be reasonably assumed (particularly given that this case took place in the early hours) that a driver drove past and observed the sign upon entrance to the lorry park. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk, if and when parking enforcement activity takes place at those times.

Further, high-sided lorries obscured any signage which may have been present. Images confirm no signage at all along the north west edge of the site.

BPA’s Code of Practice (18.10) states:

“Where there is a change in the terms and conditions that materially affect the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/ temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.”

Furthermore, the landmark case of ParkingEye v Beavis [2015] UKSC 67 establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges. ParkingEye did not provide me with evidence that such signs, if present, were available throughout the lorry park and visible, from the area where the van was parked at the time of the event.

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by:
(a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or
(b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site is not sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was neither 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 v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only.

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are obscured and hidden and impossible to read before the action of parking and leaving the vehicle.

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, that areas of this site are unsigned and 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:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately. 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.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this lorry park) 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'.

In 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106’, a driver not seeing the terms was not deemed bound by them.

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.

ParkingEye also need to prove they had provided enough information, such as how the operator calculates parking time, before drivers enter the lorry park, since this is the base of what and how the contract is going to be built. So, for this appeal, I require this operator to show the view of 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 vehicle before parking and mere stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


3. No Contract was entered into between the Parking Eye and the Driver or Registered keeper

I would like to point out that the signs at the lorry park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the lorry park. ParkingEye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a lorry park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of ParkingEye to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of lorry park.


4. No evidence of landowner authority

As this operator does not have proprietary interest in the land, I can only assume ParkingEye is an agent for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the lorry park. 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 Code of Practice) 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).
Section 7 of the BPA Code of Practice 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. No Evidence of Period Parked

PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the ‘Notice to Keeper’ to:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

ParkingEye’s ‘Notice to Keeper’ simply claims the vehicle “arrival time [xxx] and departure time [xxx]”. At no stage does ParkingEye explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012. ParkingEye uses ANPR to capture images of vehicles entering and leaving the vast unbounded and unmarked area to calculate their length of stay. Any vehicle passing by will be captured by ANPR. ParkingEye, however, does not provide any direct evidence of its alleged violation. It is not in the gift of ParkingEye to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result. By virtue of the nature of an ANPR system recording only entry and exit times, ParkingEye are not able to definitively state the period of parking. I require ParkingEye to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the ‘Notice to Keeper’.


6. ANPR Accuracy and Compliance

The ANPR System is neither reliable nor accurate. ParkingEye states the images and time stamps are collected by its ANPR camera system installed on site. In terms of the technology of the ANPR cameras themselves, The British Parking Association does not audit the ANPR systems in use by parking operators, and the BPA has no way to ensure that the systems are in good working order or that the data collected is accurate. Independent research has not found that the technology is 'generally accurate' or proportionate, or reliable at all, and this is one of the reasons why Councils are banned from using it in car parks.

As proof of this assertion here are two statements by the BPA themselves, the first one designed to stop POPLA falling into error about assumed audits. Steve Clark, Head of Operational Services at the BPA emailed a POPLA 'wrong decision' victim in January 2018 regarding this repeated misinformation about BPA somehow doing 'ANPR system audits', and Mr Clark says:

"You were concerned about a comment from the POPLA assessor who determined your case which said:
"In terms of the technology of the cameras themselves, the British Parking Association audits the camera systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate"
You believe that this statement may have been a contributory factor to the POPLA decision going against you, and required answers to a number of questions from us. This is not a statement that I have seen POPLA use before and therefore I queried it with them, as we do not conduct the sort of assessments that the Assessor alludes to.
POPLA have conceded that the Assessor's comments may have been a misrepresentation of Clause 21.3 of the BPA Code which says:
''21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.''
Our auditors check operators compliance with this Code clause and not the cameras themselves.''

Secondly, ANPR data processing and/or system failure is well known, and is certainly inappropriate in a mixed retail and residential area, such as the location in question. The BPA even warned about ANPR flaws: link

''As with all new technology, there are issues associated with its use''

Excessive use of ANPR 24/7 when such blanket coverage is overkill in terms of data processing, was also condemned by the BPA and the ICO: link

As POPLA can see from that, excessive use of ANPR is in fact, illegal, and no-one audits it except for the ICO when the public, or groups, make complaints. ParkingEye is put to strict proof that the system has not failed visitors within this site. Kindly stop assuming ANPR systems work, and expecting consumers to prove the impossible about the ‘workings of a system over which they have no control but where independent and publicly available information about its inherent failings’ is very readily available.

I require ParkingEye to present records as to the dates and times of when the cameras at this lorry 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. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that ParkingEye Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.


Yours etc.

KeithP

Do PE know who the driver is?

If not, they will when they see that appeal.
Are you happy with that?

POFA is all about transferring liability to the keeper. If PE know who the driver is, then your point 5. has no relevance .

miltwin

Yes, they already know I'm the driver. Unfortunately. My partner, who owned the van at the time, wants no part in the matter and has insisted I state I was the driver.

KeithP

Then remove point 5. See the edit to my earlier post.

miltwin

OK. Point 5 removed.

Will send to POPLA, along with Google images, and see what happens.

Thanks for your help.