ParkingEye - Mecca Bingo Dewsbury

NewYorkRoadRunner

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) for the following reason: By either not purchasing a valid pay and display ticket, by remaining at the car park for longer than permitted, or by not entering your registration details via the terminal, in accordance with the terms and conditions set out in the signage.
Assessor summary of your case

The appellant has provided a 6 page document to POPLA, listing grounds of appeal and going into detail on each specific point. For the purpose of my report, I have summarised the grounds into the following points, however I have ensured I have checked each point the appellant made before coming to my conclusion. The appellant states that:

• The Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used and the operator has not shown that the individual who it is pursuing is in fact liable for the charge.

• 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. They say a ticket was not purchased under the genuine belief that there was no parking charge due to poor and totally inadequate signage. The appellant says the signage visible to cars arriving car park only applied to the Kirklees Council Car Park and not for the adjacent car park belonging to Mecca Bingo, extremely misleading and says the driver genuinely did not know they had parked in the Mecca Bingo car park, especially as the Kirklees car park was free compared to the Mecca Bingo charge of £4 for 24 hours. They say with the driver only staying for only 28 minutes, it makes no sense why they would park in the Mecca Bingo car park as the council car park had spaces. They say they have been to the car park and they, consider that the way the signs are displayed is very misleading making the driver think that the Mecca Bingo car park is only to the right of the roundabout and not the full car park as you turn from the roundabout.

• The appellant says 'adequate notice of the parking charge' is mandatory under the Protection of Freedoms Act (PoFA) 2012 Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print.

• The parking charge amount is not a genuine pre-estimate of loss.

• The appellant says they 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. As evidence to support their appeal they have provided a copy of the PCN,

Assessor supporting rational for decision

When entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. Therefore, upon entry to the car park, it is the duty of the motorist to ensure they review the terms and conditions, and comply with them, when deciding to park. The operator has provided photographic evidence of the signage in place in the car park, which states: “Tariff payable at machine or by phone. This car park is private property, see signage in car park for terms and conditions” and “Tariffs £4.00 per 24 hours. Parking tariffs apply 24 hours a day, 7 days a week. Mecca Bingo Dewsbury guests must enter their full, correct vehicle registration into the terminal at reception to be entitled to free parking for the duration of their stay… Failure to comply with the terms and conditions will result in a Parking Charge of £100”. The operator has provided a signage plan and photographic evidence of the appellant’s vehicle, entering the car park at 10:01, and exiting at 10:30, totalling a stay of 29 minutes.

The operator has also provided a copy of a system printout, which shows that the appellant’s vehicle registration does not appear on its systems on the date of the event. The appellant has provided a 6 page document to POPLA, listing grounds of appeal and going into detail on each specific point. For the purpose of my report, I have summarised the grounds into the following points, however I have ensured I have checked each point the appellant made before coming to my conclusion.
The appellant states that:

• The Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used and the operator has not shown that the individual who it is pursuing is in fact liable for the charge.

• 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. They say a ticket was not purchased under the genuine belief that there was no parking charge due to poor and totally inadequate signage. The appellant says the signage visible to cars arriving car park only applied to the Kirklees Council Car Park and not for the adjacent car park belonging to Mecca Bingo, extremely misleading and says the driver genuinely did not know they had parked in the Mecca Bingo car park, especially as the Kirklees car park was free compared to the Mecca Bingo charge of £4 for 24 hours. They say with the driver only staying for only 28 minutes, it makes no sense why they would park in the Mecca Bingo car park as the council car park had spaces. They say they have been to the car park and they, consider that the way the signs are displayed is very misleading making the driver think that the Mecca Bingo car park is only to the right of the roundabout and not the full car park as you turn from the roundabout.

• The appellant says 'adequate notice of the parking charge' is mandatory under the Protection of Freedoms Act (PoFA) 2012 Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print.

• The parking charge amount is not a genuine pre-estimate of loss.

• The appellant says they 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. In this case, I cannot see that the driver of the vehicle has been identified at any point in the appeals process. As such, the operator is seeking to pursue the appellant, as the registered keeper of the vehicle. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. The operator has provided a copy of the Notice to Keeper (NTK) sent.

The notice to keeper sent will need to comply with section 9 of PoFA, 2012 that states that: (4) The notice must be given by- (a) handing it to the keeper, or leaving it at a current address of service for the keeper, within the relevant period; or (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period. (5) The relevant period for the purpose of sub-paragraph (4) is the period of 14 days beginning on the day after that on which the specified period of parking ended. On review of the evidence provided by the operator, it is evident that the date of contravention is 3 February 2019 and it issued the PCN on 14 February 2019. I have reviewed the notice against the relevant sections of PoFA, and I am satisfied that the operator has complied with the act. As such, the appellant, as the registered keeper is now liable for the charge. In this case the appellant says the parking charge amount is not a genuine pre-estimate of loss. They say that 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, which is hidden in small print.

The legality of parking charges has been the subject of a high profile court case, Parking Eye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets.

The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient.

When doing so, I must consider the minimum standards set out in Section 18 of the BPA Code of Practice. Section 18.1 of the British Parking Association Code of Practice states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 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”. In addition to this, I note that within the Protection of Freedoms Act 2012 it discusses the clarity that needs to be provided to make a motorist aware of the charge. Specifically, it requires that the driver is given “adequate notice” of the charge.

The act then moved on to define “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 independent assessment 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 sufficient to bring the parking charge to the attention of the motorist and that the signage at the site is “conspicuous”, “legible and written in intelligible language, so that they are easy to see, read and understand.”

On this basis, I am satisfied that the parking charge is acceptable after applying the rationale adopted by the Supreme Court in the Parking Eye-v-Beavis case. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court.

While I note the appellant says they put the 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. The site operates Automatic Number Plate Recognition (ANPR) cameras, which capture vehicles entering and exiting the site to calculate the time a vehicle has remained in the car park. This ANPR data captured is then compared with the online transaction record, and if there is not a payment located against the correct vehicle registration, a PCN is issued.

There is no requirement for the operator to provide images of the vehicle physically parked at the site. The contravention took place in daylight hours and I consider that the evidence provided by the operator is sufficient to meet its requirements. While I note that the appellant states that they were unaware of the terms and conditions, the driver of the vehicle does not need to have read the terms and conditions of the contract to accept it.

There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking. Reviewing the photographic evidence of the signage on display at the site, I am satisfied that the appellant as the driver was afforded this opportunity. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence, the motorist did not purchase a valid pay and display ticket, and therefore did not comply with the terms and conditions. As such, I conclude that the PCN has been issued correctly.
Accordingly, I must refuse this appeal.

Umkomaas

Any chance of putting some paragraphs into that massive slab of text please. We might read it in full then.

NewYorkRoadRunner

Sorry! Paragraphs added

Umkomaas

On review of the evidence provided by the operator, it is evident that the date of contravention is 3 February 2019 and it issued the PCN on 14 February 2019. I have reviewed the notice against the relevant sections of PoFA, and I am satisfied that the operator has complied with the act.

Edna Basher in posts #4 and #7 proves this to be an incorrect interpretation by the Assessor, making the NtK incapable of holding the keeper liable. This will be the main thrust of your complaint to the POPLA Lead Assessor.

In post #6 I asked you to confirm the wording of the NtK. Would you review the question I asked and now respond please.

Others will contribute as the day progresses.

Coupon-mad

You didn't answer me as to which of these is true:

Either POPLA mucked up, or you let slip who the driver was, or you were not looking at the first PCN when you told us it was a no POFA one, maybe you were looking at the reminder?

NewYorkRoadRunner

Please find a link to the original PCN (obviously replacing XX with tt) - from what I understand no mention of POFA, to re-iterate I have also been careful to never admit to who the driver was.

hXXps://i.postimg.cc/XNP9y5Wz/Untitled.jpg

Le_Kirk

Your link made live: -
https://i.postimg.cc/XNP9y5Wz/Untitled.jpg

Umkomaas

Le_Kirk wrote: »

Your link made live: -
https://i.postimg.cc/XNP9y5Wz/Untitled.jpg

That is without doubt not a PoFA compliant Notice to Keeper. Not only not meeting the timing requirements, but containing no PoFA warning to the keeper.

PE will know that this POPLA decision is unsound, but they will press ahead to recover nonetheless.

You must complain to John Gallagher that this Assessor has erred in law and the decision must be reversed.

Show us your draft letter to JG and we will help refine it.

Coupon-mad

You are right and POPLA are wrong.

That is a non POFA PCN with NOTHING about the 9(2)f warning about keeper liability whatsoever on it, and it was sent on a Thursday so is only deemed delivered the following Monday (2 working weekdays later) which is too late, which is why P/Eye used their non POFA PCN!

You need to email an immediate complaint on that basis, and say that the Assessor has erred completely as regards the POFA and has just assumed all P/Eye NTKS are POFA worded, when they are not and this one is their non-POFA (sent too late) version.

The Assessor should have checked it and failed, so has overlooked evidence and misapplied the applicable law against an appellant where the driver was never identified.

NewYorkRoadRunner

Thanks for your replies - much appreciated, i will draft a reply this evening and post it here to review