PCN ParkingEye - Supermarket overstay appeal advice

driver33

Hello!

I have been reading and following the Newbie section and worded a POPLA Appeal for a PCN that I received.

I got to this forum just after receiving the rejection of the appeal which got me by surprise so now when wording my appeal I don't know exactly nor I found an example for my situation from later 2017 as advised. I can prove I was out of the country on the data that happened - I have tickets and statement receipts that could prove.

In my initial appeal to Parking Eye i referred to the following points (pin points on this post but extended in the letter) :

1. Signage not clear
2. Excessive fine 100£ - I visited the site after the event and saw that its 2hr free parking with payment staying over that period. The car remained in the site as per PCN for 2h45 - not sure how much would have been paying for 45 min but definetely not 100£!
3. I was not driving the vehicle in question
4. Keeper (me) out of country therefore not driver - I provided the proof of evidence

I have looked and added sections Signage, Landowner Authority and Keepers to the POPLA Appeal but I would like to know if because of the situation it would be better approached in a different way

The Dates in PCN are:
Event: 3rd Feb 19
Issued: 14th Feb 19

Any help would be really appreciated

Thanks so much

Redx

you seem to have missed the most obvious alternative

a complaint by email to the CEO of the supermarket (so which supermarket was it ?)

as for a POPLA appeal , PE won against BARRY BEAVIS 2.5 years ago in 3 courts for an overstay, the last one being the SUPREME COURT, so your issues with an overstay and also the £85 or £100 charge wont wash, THE BEAVIS JUDGMENT KILLED THAT OFF

not driving the vehicle (being the driver) is irrelevant if PE followed POFA timescales and wording (which they probably did and appear to have done), so unless the NTK came late, so not being the driver and being abroad wont wash either because they are pursuing YOU as KEEPER, not as driver

so its

NO LANDOWNER AUTHORITY
POOR AND INADEQUATE SIGNAGE
BPA CoP failures (if any)
POFA2012 failures (if any)
GRACE PERIODS (BPA CoP clause #13) - if it was a short overstay ?

etc

but a retailer complaint and cancellation is ALWAYS THE BEST OPTION, before your popla appeal deadline, do not miss that deadline whatever happens unless you get a cancellation by asda or aldi or whoever it was

Guys_Dad

AS long as you haven't said you were driving, then their NTK is OUT OF TIME !!!!!

Parked : Sunday 3rd
NTK Dated : Thursday 14th
POFA deems delivery to be by 14 days, ignoring weekends

Therefore, NtK had to be with you by Friday 15th and POFA gives 2 working days to deliver.

Slam Dunk.

Read POFA, http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

9. 5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

driver33

Thanks so much for explanation!

The place is a Shopping Park so there are multiple businesses one of which - and main one - being ASDA.

Seems that you are right and I have missed that one.. would still be ok to complaint to the CEO now after having appealed to PE first?

As per "Guys Dad" post seems that the notice date of arrival would have been on the 18th - again I am not sure as I was also out on business trip this week so I found PCN on the 25th.

DOE: 3rd Feb
Issued 14th of Feb + 2 working days = 16th of Feb being Monday and 15 days from Event.

In that case - is there an additional clause to be set?

Thanks everyone for your answers!

Umkomaas

The place is a Shopping Park so there are multiple businesses one of which - and main one - being ASDA.

If the PE signage is in Asda green colours, almost certainly Asda is the contractor and are very receptive to requests from customers for cancellation. Speak to the manager, not the fob-off frump on the customer services desk. Take receipts for the day and/or previous cc/bank statements to show regular patronage.

If the signs are in standard PE yellow, and given this is a multi-retailer site, the contract may well be with a managing agent. You'll need to do your research to find out who they are - but still start with Asda, they may have an option to cancel.

I agree Guy's Dad's 'maths', so you'll need to work 'No Keeper Liability' into your POPLA appeal. I'd like you to turn to the Notice to Keeper (the first letter received) and check the following, please:

Does the reverse page of the NtK contain a paragraph about the Protection of Freedoms Act 2012, which commences 'You are notified under paragraph 9(2)(b) of Schedule 4 ..... '. And a further paragraph which commences 'You are warned that if, after 29 days from the date given ....'?

driver33

Hello Umkomaas

I will definetely check with ASDA and doing further research if they are not the contractors.

I have checked the letter and I cannot find this paragraph - I have seen @ Newbies that talks about the Golden ticket but because my layout looked different I thought it would not apply - however all that i can see is the following:

"If you were not the driver at the time, you should tell us the name and current postal address of the driver and pass this notice to them"

In the reminder notice dated 23rd of Feb - its replacing the statement above with the following"

"We would like to remind you that, if you were the driver at the time of the parking event you are required to pay or appeal the parking charge"

Coupon-mad

Forget the reminder notice - bin that one so you don't get confused. It's a nullity.

You only have a Golden ticket if it arrived later than 15 days from the parking event ans/or has not POFA 2012 para on the back.

YOU MUST complain before POPLA stage.

Before POPLA stage (BUT NOT AFTER) PE cancel these all the time when retailers breathe down their neck and all retailers can cancel these with one email.

The NEWBIES thread clearly says that in ALL cases, complain to the retailers.

driver33

Thank You

I will head to ASDA tomorrow and speak with the Manager to try to get this canceled although I have no proof of purchase as I was not the driver on that date and was not in country so cannot prove...

In case of being unsuccessful I have drafted this based on newbies thread:

Would appreciate your comments - this is just in case as last resort

Thanks!

"Dear POPLA,

On the XXXXX, ParkingEye Ltd. issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “…either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted…”

As the registered keeper I wish to refute these charges on the following grounds:

1) The Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012
2) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
3) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver

1) The Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012 (POFA)

To support this claim further the following areas of dispute are raised:
• The NTK was not not served within the required 14 days to transfer keeper liability

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met as outlined in paragraphs 5, 6, 11 & 12. ParkingEye Ltd. have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK, as outlined within paragraph 9. Specifically, they have failed to include the mandatory timeline and wording:
The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for 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.

This appeal would like to specifically highlight subsection (b) as the received NTK was delivered by post. Furthermore, paragraph 9 (5) defines a relevant period as “..the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent appellant arrived 15 days after the alleged event. Therefore, this serves to highlight that ParkingEye Ltd. have failed to act in time for keeper liability to apply. As a result, the appellant is not liable for any charges, as the Notice to Keeper has not been properly ‘given’ under the Protection of Freedom Act (POFA) 2012.

To offer further context to this point, ParkingEye Ltd. has also omitted the following wording from paragraph 7 (2), of schedule 4, of POFA 2012:!
’The notice must –
(a) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose…and the other facts that made those charges payable…

Upon receiving the Notice to Keeper it lacked any description detailing the parking charges owed from the alleged extended stay and failed to identify the ‘creditor’ to whom payment was being made. Specifically stating that ‘’either’’ there was not appropriate parking time purchased ‘’or’’ the vehicle remained longer than permitted, neither of which is a ‘fact’. The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.


3) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

It is suggested that ParkingEye Ltd. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that ParkingEye Ltd. be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

Paragraph 7 of the BPA CoP 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

4) Signage does not comply with the BPA Code of Practice and were not prominent, clear or legible from all parking spaces to form any contract with a driver

The BPA Code of Practice clearly states that:
18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.

Baring this paragraph in mind, there was categorically no contract established between the driver and ParkingEye Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. When the driver arrived at the car park it was in the hours of dusk and therefore impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located and the terms and conditions illegible.

As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.!In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

imgur.com/a/AkMCN

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 and poorly placed – particularly to a driver entering the site – with no lighting. In fact, some signs are obscured and hidden in some areas with large areas of the car park without visible signs. The signs 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.!In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

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 the majority 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 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''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 operator’s 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 .40 font size going by this guide:

url

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

url

''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.”

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 [2000] EWCA Civ 106'!about a driver not seeing the terms and consequently, she was NOT deemed bound by them. This judgment is an example of a binding case law from the Court of Appeal offers further supports my argument:

url

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.

Based on these points, it is believed that ParkingEye Ltd. are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions, driver safety and ensuring the appropriate illumination of signs. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, request that ParkingEye Ltd. be required to provide strict proof of exactly where the car was parked (from photos taken in the same lighting conditions) and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date, time and lighting condition of the alleged event. I submit that full terms simply cannot be read safely from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. In addition to this, it is requested that any neighbouring signs to the entrance and vehicle parking location to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted or the driver misinformed.


In summary, these points demonstrate the claim by ParkingEye Ltd is invalid and should the claim continue, further action and evidence requested in this appeal is required from ParkingEye Ltd.
"

Guys_Dad

No! You have made a right mess of the out of time point. Just repeat that POFA demands that the NTK needs to be delivered within 14 days from the day after the event. Quote the bit I gave you and spell out that the date of NTK meant that if it was posted on the Thursday it was dated, POFA says the earliest it could be deemed delivered is the following Monday. Your contravention was a Sunday.

No need for all the other padding on this point. In fact, the point you should be making is drowned in the superfluous waffle that doesn't show the weekend is involved or refer to the dates. POFA assessors are so poor they will miss this vital point.

driver33

Hello!
Sorry for late reply .. just arrived from ASDA after trying for second time to get the PCN cancelled after my wife had no luck on that but same has happened to me - no luck. Because the shopping center is that big they have refused to act in our behalf as they said ASDA does not have the right to do that and have referred us to speak with ParkingEye - which obviously it won't help...

So I will focus on the letter to appeal to POPLA...

I have reworded the letter as per Guys Dad focussing on NTK being late.. would you mind give me a hand please with that - by reading and providing me any suggestion on re-wording?

Thank You so much in advance everyone!

"Dear POPLA,

On the XXXXX, ParkingEye Ltd. issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “…either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted…”

As the registered keeper I wish to refute these charges on the following grounds:

1) The Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012 (POFA)

To support this claim further the following areas of dispute are raised:
• The NTK was not not served within the required 14 days to transfer keeper liability

Under schedule 4, sub-paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met as outlined in paragraphs 5, 6, 11 & 12. ParkingEye Ltd. have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK, as outlined within paragraph 9.
Specifically, they have failed to include the mandatory timeline:

The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for 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.

This appeal would like to specifically highlight subsection (b) as the received NTK was delivered by post.

Furthermore, paragraph 9 (5) defines a relevant period as:

9. 5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

The NTK Event was on Sunday 3rd of February and sent on Thursday 14th of February – NTK appellant arrived 15 days after the alleged event – on Monday 18th of February. Therefore, this serves to highlight that ParkingEye Ltd. have failed to act in time for keeper liability to apply. As a result, the appellant is not liable for any charges, as the Notice to Keeper has not been properly ‘given’ under the Protection of Freedom Act (POFA) 2012."

Redx

now add other legal point like no landowner authority , poor and inadequate signage , any BPA CoP failures etc too