Popla Appeal Unsuccessful - ParkingEye - Darlington

Narkedmotorist

Popla Appeal Unsuccessful - ParkingEye - Grange Road Darlington

Started a new thread as i have just received the LETTER BEFORE COUNTY COURT CLAIM notification from parking eye. :mad::mad:

I have taken the advice from Coupon - mad regarding re-visiting the site, we did that last weekend so intend to request the camera data early next week from these rip off merchants.

Am i presuming the advice regarding responding to these LBCCC notifications in the FAQ area around frustrating the Operator via Pre-Action Protocol is still the way to go now?

many thanks again for the support.

paulstevens64

The instruction to start a new thread if you get an LBCC, is if you have not started one already. I would advise to copy your post onto your existing thread, and let this one die.

The_Deep

As you probably now know, PoPLA decisions are not entirely without bias.
However, a little bird told me that they may not be around for much longer.

I am sure that, given recent events, if you write to them complaining, they may review this decision.

Narkedmotorist

i didn't have a previous thread, coupon-mad suggested i start a new thread on receipt of the threatogram within the popla appeal thread.

Half_way

Adding a little background detail would be of help, such as whos car park was it, and why did you get a ticket?
have you complained to the car park owner? if not you should do so as soon as possible, and before you send any complaint off, post it here first

Coupon-mad

Am i presuming the advice regarding responding to these LBCCC notifications in the FAQ area around frustrating the Operator via Pre-Action Protocol is still the way to go now?

I edited it this week and ParkingEye are mentioned specifically as they are a bit different in that you can email them (see NEWBIES thread).

Tell us more about the contravention and car park, and why didn't the landowner cancel the stupid PCN when you complained (always the first step).

Narkedmotorist

Hi Folks, summary of the "alleged contravention" below. I went alone with this up to the Popla decision stage, which was deemed unsuccessful on the 26th October. I'll also copy the Popla decision rhetoric in a post below that here in this thread so everything is in one place.

Car park - Grange Road Darlington
Landowner - F Peter Robinson Limited

This was an overstay alleged contravention - parking paid for 2 hours, entry time recorded as 10.05.55am, exist time recorded as 12.20.00pm - total stay for the visit 2 hours, 14 minutes, 5 seconds. The driver had stayed at the site 12 minutes over the elapsed paid for period, therefore taking 2 minutes to purchase a ticket on arrival - actual time the ticket was issued - 10.07.00am

extract from Popla decision :

The appellant says that the parking operator did not adhere to the grace period offered at the site. Section 13 of the BPA Code of Practice refers to grace periods on private land. A grace period allows a motorist to enter a site and leave, or to enter a site read the terms and conditions and exit if they feel the terms and conditions could not be complied with. However, if a grace period is to be considered, the motorist must have utilised the period for its intended purpose and the motorist must only decide not to park, and take no other action, whilst at the site. From the evidence given I can see that the appellant purchased their ticket within two minutes of arrival.

However, it took 12 minutes to exit the site after the paid ticket had expired.

As the appellant has not given a reason for the delay in leaving this site it is not possible to assess if the time at the end of the contract was used correctly. Additionally, as the operator offers an option to buy additional time prior to leaving this was an option for the appellant to consider.

The main element of the defence for me focused on the grace and observation period BPA context, which Popla has ignored. Coupon-mad rightly pointed out that it was very unlikely the driver was able to navigate to a parking space, secure the vehicle, read the signage, access a means of payment, input registration details and make the payment within 2 minutes (actually 1 minute and 5 seconds), therefore putting pressure on the "alleged" 12 minute overstay.

As such we have been back to the site to video the vehicle entry and payment machine clocks and are now in the process of request via SAR with Parking Eye the camera data for this 2nd visit, to check if the clocks are misaligned.

I hadn't made complaint to the landowner as the identity of that body only became apparent following the receipt of Parking Eye's evidence in the Popla appeal. Will be pushing on with that concurrent to responding to the LBCC. The landowner permission within the evidence is in the form of a witness statement, signed 10th august 2018, for a 9th feb - 9th august period. the event was late July. I missed this at the time, may have been relevant to point out at the Popla stage before decision? there is no detail on this witness statement regarding grace or observation periods FYI.

i will check out the new guidance in the newbies section regarding the acknowledgement process from here, date of the LBCC is 20th November. I am presume the context in the sticky area is now out of date?

Narkedmotorist

my original post below ref the Popla unsuccessful appeal decision.

8th Nov 18, 2:17 PM
Hi folks, i have successfully seen off 2 previous parking tickets using the wonderful advice provided by this forum, many thanks for all your very valuable contributions. This latest ticket however has recently been rejected by Popla despite a robust defence i felt in relation to grace periods specifically.

Verification Code
606226XXXX

Decision
Unsuccessful

Assessor Name
EilXXn IoaXXou

Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) for either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted.

Assessor summary of your case
Within their appeal the appellant has identified themselves as the Registered keeper of the vehicle. They state that the driver has not been identified. The appellant has relied upon the British Parking Association (BPA) Code of Practice stating that the operator has breached the following areas. They state that grace period at the site was not adhered to, from that the operator does not have the authority to purchase charges from the landowner. Staying with he BPA Code of Practice the appellant says that the signage is not compliant at the site as it is not prominent enough. On the date of the event the appellant says that a PCN was issued as the vehicle remained at the site for longer than permit, 14 minutes was quoted. The appellant supplied evidence of the signage at the site with their appeal.

Assessor supporting rational for decision
In this case, it is not clear who the driver of the appellant’s vehicle is, so I must consider the Protection of Freedoms Act (PoFA) 2012. The operator issued the PCN to the keeper of the vehicle who maintains throughout their appeal to POPLA that they were not the driver. The operator has provided me with a copy of the notice to keeper which I reviewed against the relevant sections of PoFA 2012. I am satisfied that it is compliant. As such, the keeper is liable for the charge. POPLA is an evidence based service, the decision reached is based on the evidence and information supplied by both parties. Firstly, in order to establish if the contravention occurred I must consider the evidence from the parking operator that suggests the contract offered was breached. The signage sets out the terms and conditions of the contract offered. From the evidence supplied by the parking operator I can see that the signage states, “Parking Tariffs, Up to 3 hours £3.00”. “Please enter full, correct registration into the payment machine when purchasing a ticket” and “Failure to comply with the terms & conditions will result in a Parking Charge of: £100”. In addition to this the operator offers a paybyphone facility along with the option to pay for additional parking prior to leaving the site. I can see that each of the signs offers a helpline number for motorists to call for assistance. The operator has supplied a copy of a site map; from this I am able to determine the position of the signage from the entrance and throughout. The entrance to the site uses Automatic Number Plate Recognition (ANPR) cameras. The ANPR cameras record the duration of a motorists stay from the point of entry to the point of exit. To establish a breach the vehicle registration details are matched against the data produced by the ANPR system. Any breaches identified at the site will result in the issuance of a PCN. In this case I can see that the ANPR cameras have captured vehicle registration, XXXX XXXX. The entry time was recorded as 10:05 with an exit time recorded as 12:20. The total stay for this visit was two hours and 14 minutes. In this case and based on the evidence supplied by the parking operator, I can see that the operator issued a PCN for either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted. From the operator’s evidence I can see that insufficient parking was purchased on the date of the event as the appellant remained at the site for a period of 14 minutes beyond the time that they had paid for. After reviewing the evidence supplied by the parking operator I am satisfied that an offer of a contract was made between the parking operator and the motorist. I will now turn my attention to the appellant and assess their grounds of appeal to establish if there is sufficient information to dispute the validity of the PCN issued by the operator. Within their appeal the appellant has identified themselves as the Registered keeper of the vehicle. They state that the driver has not been identified. The appellant has relied upon the BPA Code of Practice stating that the operator has breached the following areas. They state that grace period at the site was not adhered to, from that the operator does not have the authority to purchase charges from the landowner. Staying with the BPA Code of Practice the appellant says that the signage is not compliant at the site as it is not prominent enough. On the date of the event the appellant says that a PCN was issued as the vehicle remained at the site for longer than permit, 14 minutes was quoted. The appellant supplied evidence of the signage at the site with their appeal. Section 7.1 of the BPA Code of Practice outlines to operators, “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the BPA Code of Practice and that you have the authority to pursue outstanding parking charges”. In terms of POPLA appeals, the burden of proof belongs with the operator to demonstrate it has issued the PCN correctly. I would expect the operator to provide written landowner authority or a valid witness statement to rebut the appellant claims, that the operator does not have landowner authority to issue PCN’s on the site in question. The evidence supplied by the parking operator clearly identifies that a contract is in place and that it was valid at the time that the charge was issued to the appellant. As such, I am satisfied that the minimum requirements have been met by the parking operator. The appellant says that the parking operator did not adhere to the grace period offered at the site. Section 13 of the BPA Code of Practice refers to grace periods on private land. A grace period allows a motorist to enter a site and leave, or to enter a site read the terms and conditions and exit if they feel the terms and conditions could not be complied with. However, if a grace period is to be considered, the motorist must have utilised the period for its intended purpose and the motorist must only decide not to park, and take no other action, whilst at the site. From the evidence given I can see that the appellant purchased their ticket within two minutes of arrival. However, it took 12 minutes to exit the site after the paid ticket had expired. As the appellant has not given a reason for the delay in leaving this site it is not possible to assess if the time at the end of the contract was used correctly. Additionally, as the operator offers an option to buy additional time prior to leaving this was an option for the appellant to consider. Within their appeal the appellant has questioned the signage at the site. As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in the BPA Code of Practice. Section 18.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 of the BPA Code of Practice continues: “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…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. Having reviewed the signage I am satisfied that it meets the minimum requirements set out by the BPA Code of Practice. When entering a private car park, it is the duty of the motorist to review the terms and conditions and comply with them. If, for whatever reason, the motorist does not feel that they can meet the terms and conditions offered or feels that more suitable parking can be found elsewhere, there would be sufficient time to leave the site prior to entering a contract with the parking operator. By remaining and parking the motorist has implied their acceptance of the contract offered in the signage advertised. Based on the information and evidence presented to me, I am satisfied that the signage clearly informs motorists that they must pay for their parking with additional payments being accepted for any unplanned time at the site. It is my conclusion that the appellant breached the terms and conditions offered and that the PCN was issued correctly. For the time that the vehicle remained at the site a payment of £3 was required. As such, I must refuse this appeal.

grrrrrrrr..

Coupon-mad

As such we have been back to the site to video the vehicle entry and payment machine clocks and are now in the process of request via SAR with Parking Eye the camera data for this 2nd visit, to check if the clocks are misaligned.

Very good work. INSIST on that data - we know they keep all VRN data of every single car, for several months.

You need to expose the (deliberate or negligent, it's one or the other) flaw in the unsynchronised clocks, and more people need to do this, then complain to the Information Commissioner with your evidence.

Narkedmotorist

Coupon-mad wrote: »

Very good work. INSIST on that data - we know they keep all VRN data of every single car, for several months. You need to expose the (deliberate or negligent, it's one or the other) flaw in the unsynchronised clocks, and more people need to do this, then complain to the Information Commissioner with your evidence.

Make no mistake, i'll be complaining to everyone of any significance (and anyone else that will listen either voluntarily or otherwise) throughout this process starting with the right honourable member for Darlington. They've kicked the wrong hornet's nest on this one...:eek::eek:

Narkedmotorist

Guys, i'd really appreciate your comments / suggested amends on the draft landowner complaint letter content below:

Inappropriate Parking Fee Claim – XXX July 2018, Grange Road Car Park

Dear Sir / Madam,
I write to you as the registered keeper of vehicle XXXX XXX – a XXXXXX, which was parked at your Grange Road Car Park between the hours of 10.XX and 12.XX on XXXX July XXX 2018.
The driver of this vehicle, who I will not be naming in this correspondence and I, have been residents of Darlington our entire lives and are very familiar with your establishment, a long standing and well-respected business, retailer and employer. My own extended family all from the local community have purchased a number of items at auction over many years and have also sought advice on the value of a number of family heirlooms. I personally visit your showroom for a browse on a regular basis when I visit the Grange Road area.

The driver of the vehicle used your car park on the XXX July, purchasing a valid ticket for a short visit to your neighbouring Grange Road retail area, however took a little time to leave the site on returning to the car due to congestion within the car park on the day. It is not the best space to navigate in and out of in a larger vehicle, particularly in the area specifically adjacent to the Metal Walk way leading to Grange road where this vehicle had been parked. A Parking charge notice, was subsequently received by me the registered keeper of the vehicle on the XXX July claiming I was in breach of the terms and conditions of the management company ParkingEye for a failure to either:

• Purchasing a valid pay and display ticket
• Remaining in the car park for longer than permitted

They are attempting to recover £100 in fees from the driver in question, or from me the registered keeper in the event the driver is not identified. I subsequently appealed the decision to issue this parking charge directly to ParkingEye, on the grounds that the signage on site is totally inadequate and that there was no consideration to grace and observation periods as laid down by their own industry body, the BPA, in their code of conduct for member organisations.

This was an overstay alleged contravention, given parking was paid for 2 hours. The entry time recorded via their cameras was 10.XXXam, the exit time was recorded as 12.XXXpm - total stay for the visit 2 hours, 14 minutes, 5 seconds. The machine on the site recorded that the ticket for a 2 hour stay was issued at 10XXXam. Therefore, the driver according to these automatic recording devices had driven into the car park on a busy XXXday morning, navigated to a car parking space, read the terms and conditions including the small contract print, found a means of payment, entered the registration number of the vehicle and purchased the ticket – all within 1 minute and 5 seconds. There is therefore a 13 minute overstay following the paid for 2-hour period given this period would have ended at 12XXpm. Clearly it is very unlikely that the “actual time” the ticket was purchased is 1 minute, 5 seconds after the point of entry. As such it is reasonable to assume that the actual overstay is more like 10-12 minutes and the camera and parking machine times are woefully misaligned. The BPA in their own code of conduct make provisions for grace and observation periods outside of any paid for period to allow the driver to enter the car park, park safely, understand the terms and thereafter make the decision to stay and pay. Equally there needs to be provision for the safe departure of the site following the parking period. I have extracted the guidance below for your consideration:

The BPA Code of Practice clearly highlights within section 13 that a company’s approach to parking management must allow a vehicle a reasonable period without having their vehicle issued with a parking charge notice. Subsections 13.2 and 13.4 offer further clarification stating that
13.2 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. 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.

They rejected this appeal out of hand and are continuing to demand £100 for a technical 2 minute approx. overstay, notwithstanding the points made above suggesting there is in fact no technical contravention when considering the “total” unpaid time of 14 minutes and 5 seconds collectively. I do hope this is not indicative of the way Thomas Watson Auctioneers deals with previous and prospective customers and would like to think you will review the content of this letter and come to the conclusion that ParkingEye are stepping well over the line on your behalf in making such demands on the fair folk of Darlington.

We then took the decision to appeal via Popla; sure that this so called “objective” industry body would consider the facts in the round and conclude that ParkingEye are not only acting disproportionately, but also flagrantly ignoring their own trade body’s code of conduct on Grace and Observation periods. Popla disappointingly found in their favour, choosing to totally ignore the key point in question. ParkingEye’s strongarm tactics are to put things bluntly aggressive, in relation to their collection process, inflexible to the circumstances in question and are out of all proportion to the circumstances and losses incurred. They have since elected to pursue this via a breach of contract claim via County Court and are threatening to further escalate the sum demanded via additional costs to an extortionate £175 – for a 2 minute overstay!!.

To summarise as the registered keeper I wish to refute the parking contravention on the following grounds:

1) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
2) The operator’s failure to adhere to the British Parking Associations (BPA) Code of Practice relating to Grace and Observation Periods,
3) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass, and the witness statement since received is dated after the date of the incident in question.
4) Signage does not comply with the BPA Code of Practice and the small print specifically was not prominent enough to form any contract with a driver

I will be forwarding a copy of this complaint by letter to the local MP as the tactics used by these outrageous parking enforcement companies has been openly debated in Parliament this year. Furthermore, following the 3rd reading recently in the commons, the new Code of Conduct Bill which was sponsored by Sir Greg Knight has duly passed and has advanced to the House of Lords for final approval. Commentators in this field are hopeful the new legislation will be made law early in 2019.

Link to a recent this is money article......

This should put to an end once and for all the unscrupulous profiteering on the back of genuine members of the public who have either made a genuine mistake, are naïve to the code of conduct which should currently be adhered to by these parking companies, or have not seen the detail around the terms and conditions entered into when parking in a private land car park – usually as a result of poor signage.

We are now making representations in this regard following the letter before county court action and will contact the local press in the event this is not dealt with appropriately. This is something I am sure they will pick up eagerly given the timing around the new legislation about to come into force. I feel confident however, that this is a set of circumstances your company and good name will not want to be associated with and appeal to your good judgement to instruct these predators to cancel their action against me as the registered keeper. I am more than happy to donate the “alleged” overstay value to the charity of your choice as a gesture of our good will.

I look forward to hearing from you in due course.