ParkingEye Claim Help - Watergate Bay, Newquay

Joefish

Hi all,

I received a PCN on 9th September this year at Watergate Bay in Newquay from those lovely people at ParkingEye. Rather naively, I thought that having a receipt for the duration of my parking would be sufficient - so I emailed a copy to them.

I received an email from them last week saying they have rejected my representations, and I'm now in the process of reading the FAQ's to prepare my POPLA appeal.

Their case seems to hinge on the fact that "Our records show that
insufficient time was paid for on the date of the parking event." They say I stayed for (or entered/left the car park) 2hours 49 minutes. Either way, I paid for 3 hours parking. There is something like a 16 minute discrepancy between the time I entered the car park and the time my parking started. I know, I know - what a huge amount of time right?

I have two questions:

1 - That 16 minute delay - I'm assuming I can successfully argue BPA grace periods here...

2 - I only started reading these forums AFTER I received my rejection from ParkingEye...meaning I probably admitted to being the one that committed the offence in my representations to them (stating that I got a ticket, I parked the car etc etc). I say probably because I have no copy/record of my representation with ParkingEye - and short of requesting to get a copy of it under Freedom of Information I will have no idea exactly what I wrote (I kno, I know...) Does this even matter or shall I just go ahead and start drafting my POPLA appeal now?

Thanks in advance guys

Redx

1) correct, as there are 2 grace periods, one before of up to say 10 minutes, and one after for leaving, of more than 10 minutes


clause #13 of the BPA CoP


2) start drafting the popla appeal because if PE followed POFA2012 then being keeper or driver is irrelevant

Umkomaas

1 - That 16 minute delay - I'm assuming I can successfully argue BPA grace periods here...

You will need to have a very well argued line on why it took 16 minutes from entry to payment. It's not a question of just shouting, 'Grace Period, Grace Period' and POPLA will accept your appeal, you will need to document carefully the reasons for the delay.

Joefish

Thanks guys, much appreciated! As far as I can see, PE have met POFA2012 conditions, so I will go ahead and get my POPLA appeal started.

Umkomaas wrote: »

You will need to have a very well argued line on why it took 16 minutes from entry to payment. It's not a question of just shouting, 'Grace Period, Grace Period' and POPLA will accept your appeal, you will need to document carefully the reasons for the delay.

That's what I was concerned about. Just as RedX says, I understood I'm allowed roughly 10 minutes grace period before my paid session.

They have me entering the car park at 10:01 - this isn't equivalent to when my parking session should start?

I didn't immediately park but spent time finding a place to park, I then paid via JustPark app which took some time due to poor signal and the car park code not being listed on the parking app (I actually downloaded the RingGo app to try to get that to work but I couldn't find the car park code on there either). I even Googled the car park and searched it on the Cornwall Council website to see if the code was listed on there (it was not). Eventually, I found the code on a forum post and was able to enter it on JustPark. All this took time and would account for the extra 6 minutes - I suppose it's whether I can successfully demonstrate this with POPLA.

Thanks for your comments - I will get drafting my appeal today!

Coupon-mad

Just look at other similar POPLA appeals, use these keywords (ADVANCED SEARCH - POSTS ONLY):

POPLA ParkingEye surfboards paraphernalia

This has all been done umpteen times over. You can copy one & adapt it.

Redx

for clarity, post below the time of entry, time the parking ticket was purchased and started to be in force, and add the time difference caused by all the faffing around to get it paid (the actual grace period involved here)

then post the time the paid for parking ticket ended and the time they recorded the vehicle leaving the site exit, and that time difference too (the exit GRACE PERIOD involved here)

now compare those 2 periods to the BPA CoP, clause #13 grace periods

and base your popla appeal on that, plus all the other standard appeal points , by reading others from this year only (as CM says above)

Joefish

Redx wrote: »

for clarity, post below the time of entry, time the parking ticket was purchased and started to be in force, and add the time difference caused by all the faffing around to get it paid (the actual grace period involved here)

then post the time the paid for parking ticket ended and the time they recorded the vehicle leaving the site exit, and that time difference too (the exit GRACE PERIOD involved here)

now compare those 2 periods to the BPA CoP, clause #13 grace periods

and base your popla appeal on that, plus all the other standard appeal points , by reading others from this year only (as CM says above)

Okay:

Time I entered - 10:01:32 (Timestamped photo, I accept this as accurate)
Time Parking started - 10:17
Time I left - 12:49:39
Time parking ended - 13:17

As you can see there's no issue with my being covered for the END of my parking period, it's the 15 1/2 minutes at the start which needs to be justified.

BPA CoP doesn't state any specific times, but allows for a "reasonable grace period in which to decide if they are going to stay or go." 16 minutes in my eyes is not unreasonable - I was meeting friends, I was trying to call them to make sure I was in the right place, then find a place to park, faff around with the app etc etc. Thanks Redx, that's clarified things in my mind a little as to what I need to argue.


Interestingly, I just noticed that my receipt supplied in my representations to PE doesn't actually specify start and end times at all. It just has a line which says "Parking for booking" and a price of £4.50. PE's rejection argument is that "insufficient time was paid for on the date of the parking event." I wonder if this is an oversight on my part by not disclosing or PE being pedantic/trying to con me out of money. I suspect they would have rejected my appeal either way, but if I didn't know better I'd want to appeal to POPLA on the grounds that parking was clearly paid for, and that a CC receipt was supplied. End of story.

The_Deep

You will need to have a very well argued line on why it took 16 minutes from entry to payment.

Why? This was Newquay in early September, the place would be jammed packed with grockles. Finding an empty space could take ages.

https://parking-prankster.blogspot.com/2014/03/waiting-for-space-is-not-parking.html

Read this OP

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 in the house as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week, hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an
M.P. for unprofessional conduct

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

Coupon-mad

Interestingly, I just noticed that my receipt supplied in my representations to PE doesn't actually specify start and end times at all. It just has a line which says "Parking for booking" and a price of £4.50. PE's rejection argument is that "insufficient time was paid for on the date of the parking event." I wonder if this is an oversight on my part by not disclosing or PE being pedantic/trying to con me out of money. I suspect they would have rejected my appeal either way, but if I didn't know better I'd want to appeal to POPLA on the grounds that parking was clearly paid for, and that a CC receipt was supplied. End of story.

Not really.

PE WILL show POPLA the actual times, in their POPLA evidence, and unless you attack the 15 minutes at the start, in your first submission, you CANNOT add new points later.

So you'd be talking about the slow weave in, past children, buckets, spades, surfboard wielding people, then driving round 4 or 5 times, or more, looking for and waiting for a parking space to come up at a busy time when the weather at the beach was good...

...and pointing out the 31 minutes is not parking' case at Newquay, and referring to Thornton v Shoe Lane

...and then explaining you then read the signs & had to download an app and/or make changes to the app if you'd used it before for another location, and the signal was bad. Or if paid in cash, that there was a queue of ten people at the single nearest PDT machine, etc.

Time I entered - 10:01:32 (Timestamped photo, I accept this as accurate)
Time Parking started - 10:17
Time I left - 12:49:39
Time parking ended - 13:17

As you can see there's no issue with my being covered for the END of my parking period, it's the 15 1/2 minutes at the start which needs to be justified.

You MUST attack and explain the 15 minutes (never saying you 'went for change').

And point out to POPLA you then left half an hour early so for PE to try to extort money for this paid-for parking, is tantamount to fraud in your opinion. Cover it all in detail.

Joefish

Guys, you've given me SO much to go on - THANK YOU! I'm not going to ask any more questions, but I'm going to draft my POPLA appeal and post it up this weekend. As you rightly say CM, there are heaps of appeals that I can look at and adapt, so I'm going to do just that.

Thanks again, I'll be back with my draft!

Joefish

Finally, my draft appeal! There are large swathes of it taken from other appeals and adjusted (but that's what I'm supposed to do, right?) so it needs proofing and tidying up etc, but just wanted to get your opinions at this stage.

---

1 Grace Period: BPA Code of Practice—non-compliance
The BPA’s Code of Practice states (in §13) that there are two grace periods: one at the start and one at the end.
BPA’s Code of Practice (¶13.1) states that,
“If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking 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.”
BPA’s Code of Practice (¶13.2) states that,
“If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”
BPA’s Code of Practice (¶13.4) states that,
“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.”
The BPA Code of Practice ¶13.2 and ¶13.4 clearly state that the Grace Period to enter and leave the car park should be a minimum of 10 minutes. It is reasonable to consider then, that from the time of entering the car park a driver should be afforded a realistic grace period in which:
1 - to park, locate and consider the offer made by the car park operator and, if accepting the offer;
2 - to subsequently pay.

The “reasonable...grace period must be a minimum of 10 minutes” so it is argued that a total time of 15 1/2 minutes before parking, as in this case, is within the limits of a reasonable grace period given:
a. How busy the car park was – it was a Sunday lunch time in a popular location during peak tourist season and therefore took longer than normally expected to locate a vacant parking space.
b. The signage communicating the terms and conditions – the full details of the offer made by the car park operator include a solid block of text that is difficult to read and takes time to understand within such a timeframe.
c. The location has poor phone signal - payment was made via the JustPark phone app in an area where phone signal is adversely affected, meaning simple web pages and apps took minutes to access, delaying the paying process.
d. The signage communicating how to pay - there is nothing on the signage upon entering the car park to indicate that Cornwall Council have supported paying via the JustPark app at Watergate Bay car park since 3/4/2018. The only information is to pay by “paybyphone.co.uk”, indicating that JustPark may not have been supported. This was compounded by the slow phone signal, as JustPark therefore failed to show Watergate Bay as a supported car park within the app. This then resulted in a period of confusion: trying to pay by “paybyphone . co . uk” without success due to numerous browser pages not loading; attempting to use the accompanying telephone service without success due to an unknown PIN (and no assistance therein), resulting in the automated service ending the call after 3 failed attempts (total time spent on phonecall - 2mins 55s); trying to find the required parking information online; and asking other motorists for assistance (without success). When the required JustPark code for Watergate Bay was eventually accessed on the Cornwall Council website, parking was paid for as quickly as the slow internet connection allowed in the location.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (speaking before the updated version of the Code of Practice was issued) wrote,
“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.”
“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, no limited to disability.”
In preparation for the update, on 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in ¶13.4 of the BPA Code
of Practice to read ‘a minimum of eleven minutes’:
“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by 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 recommendation reads:
“Reword Clause 13.4 to ‘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 11 minutes.”
However, the updated document continues to state 10 minutes, albeit with the extension to add to ¶13.2 as well as ¶13.4.
This still illustrates that the intention of stating vaguely, ‘a minimum of ten minutes’ in the current BPA Code of Practice (not a maximum—a minimum requirement) means to any reasonable interpretation that seconds are de minimis and therefore not taken into account.
If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate (and read) terms and conditions, decide whether to enter into a contract.
Therefore, if a driver stops for a brief moment to read a sign, they MUST additionally have the opportunity to leave and not accept the terms of an alleged contract. As a result I would argue that the duration of the visit in question (which ParkingEye claim was XX hours, XX mins) does not breach a fair grace period, and therefore ParkingEye are in breach of the BPA Code of Practice.

{ Aerial View of XXXXXXX Car Park}

With reference to figure 1, it can be observed that XXX is a relatively small car park comprising roughly 100 parking spaces. A one way flow system in and out of the car park is imposed. It is not uncommon to find the car park full and people waiting in their cars for spaces to become available; when this occurs it is often difficult for incoming traffic to bypass the waiting vehicles, or for exiting vehicles to reach the exit. The 10 minute minimum grace period can be very quickly eaten away just waiting.
In referencing the images that have been included in the notice to keeper, the vehicle is alleged to have spent a total time of 2 hours, 48 minutes between entering and leaving the site, and no inference to grace periods have been made, so it is assumed that they have not been considered. Since the code has been broken in this manner, it was incorrect to have requested the registered keeper details of this vehicle.

2 The alleged contravention simply did not take place

The BPA’s Code of Practice (¶20.1) states that,
“When a vehicle is parked in a private car park, the normal rule is that the driver is responsible for paying the tariff fee (if any) for parking, for following the terms and conditions which apply, and for paying any parking charges.”
As has already been established, the tariff fee was paid in this case and terms and conditions adhered to. Having made representations to ParkingEye on XXX, it was rejected on XXX - the basis of which appearing to be that “insufficient time was paid for on the date of the parking event.”
Parking of a total of XX hours was paid for via JustPark app, as supported by “XXX.pdf” (a XXX Council receipt). This is in fact corroborated by ParkingEye in their NtK (“XXX.pdf”), which clearly states that time spent in the car park was in fact XX hours and XX minutes. It is therefore plainly observed that there is in fact a deficit of unused parking time - including any and all grace periods previously argued - of 12 minutes, that there was no parking contravention, and that ParkingEye’s grounds for rejecting the appeal are insufficient at best.


3 Inadequate signage
The signs in this car park are not prominent, clear or legible from all parking spaces or before entry.
I found it difficult to read text in every panel even when stood next to the sign. I note that the bottom panel describes data protection use of information gathered.
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 - given that it is hidden from view behind the entrance to the car park - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist before entering the car park.
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 particular car park and those facts only, see figure 5.
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.
The ‘Beavis case’ sign is shown in figure 3 as a comparison to the signs under dispute in this case, shown alongside in figure 4.
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 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.
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.
This case is more similar to the signage in POPLA decision 5960956830 on 2 nd June 2016, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
“the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. In addition the 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, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.
The letters seem to be no larger than 40pt font size going by this guide: XXX
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here: XXX
“When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1–2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.”
“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 maximum viewing distance.”
So, a letter height of just half an inch, showing the terms and the ‘charge’ and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.
Under Lord Denning’s Red Hand Rule, the charge (being ‘out of all proportion’ with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: ‘in red letters with a red hand pointing to it’—i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in ‘Beavis.’ A reasonable interpretation of the ‘red hand rule’ and the ‘signage visibility distance’ tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more ‘white space’ as background contrast. Indeed in the Consumer Rights Act 2015 there is a ‘Requirement for transparency’:
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact ‘Vine v London Borough of Waltham Forest EWCA Civ 106’ about a driver not seeing the terms and consequently, she was NOT deemed bound by them. This judgement is binding case law from the Court of Appeal and supports my argument, not the operator’s case: XXX
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.
So, for this appeal, I put ParkingEye 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 have provided those examples (figures 2 and 4) in order to provide comparisons with the ‘Beavis’ signage (figure 3). 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.

4 No evidence of landowner’s authority to collect parking fees
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—such as any ‘genuine customer’ or ‘genuine resident’ exemptions or any site occupier’s ‘right of veto’ charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site—is key evidence to define what this operator is authorised to do, and when/where.
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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put ParkingEye 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