Parking Eye - Bloom Street Manchester - POPLA STAGE

FuminGuy

I am also looking to add some points about the signage too as there is no clear wordage relating to ANPR recording to bulk it out a bit.

@CouponMad - is there any point in address the signage or would the case be strong enough with the evidence of alternative parking within 2 minutes of leaving the site?

I do apologize for the length of time it's taken me to get back to your original posts had a few other life emergencies which took priority.

Coupon-mad

Always add the 'unclear signs' and 'no landowner authority' template POPLA points.

FuminGuy

Hi, Here is my second draft at the POPLA appeal..

Any more advice would be great.

Kind regards.......

Dear POPLA,
I am writing as the registered keeper of vehicle XXXX XXXt o lodge a formal appeal against the PCN issued by Private Eye to myself as registered keeper on the xx 2019 for the alleged breach of parking conditions at the Britannia Bloom Street car park on the XXth XXXX 2019. I must firmly state that although I am the registered Keeper I was NOT the driver at the time of this alleged offence. I reserve my right as registered keeper not to provide the name and address of the driver as I have no legal obligation to do so.

I contend that I am not liable for the parking charge on the grounds listed below and kindly request that they are all considered.
1) No Card payment method to purchase parking on the site
2) The Driver did not accept the parking terms and sought alternative parking.
3) Experiencing technological difficulties
4) The entrance signs are inadequately positioned and lit and signs in this carpark are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

5) 'No Grace Periods - breach of BPA CoP'
6) ParkingEye has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
7) No evidence to show that the APNR system is reliable nor accurate.
8) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
9) No Planning Permission from Manchester City Council for Advertising Consent for signage


1- No Card payment method to purchase parking on the site

ParkingEye has rejected the appeal as they state that no parking was purchased on the day despite payment methods being available. The ONLY methods of payment at that particular site is through mobile device or cash which the driver was unable to make payment by due to experiencing technological difficulties (unable to download the app) and not having and cash on their person on that day in question. Thus making it impossible for the driver to purchase parking whether that be for 11 minutes or 11 hours. The Britannia Bloom Street car park pay station does not except card payments. The appellant has provided evidence of the site not accepting card payments (See Fig# 1 ) which was the drivers preferred method of payment on the 15/02/19.



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2- The Driver did not accept the parking terms and sought alternative parking.

The driver did not accept any parking contract as the site could not accommodate the drivers preferred method of payment. Due to this the driver decided to leave by driving out of the site as pictured in the Parkin charge notice, to find alternative parking within minutes 2 minutes. The site was the NCP Charlton Street car park which is situated approx. 600 yards from the Bloom Street site. The ticket for this alternative parking contract with another operator elsewhere (see Fig #2), is shown for POPLA to see that the appellant's version of events is the preferred one and the truth, proving no contract or licence to park was available from the first operator on this occasion. Thus the PCN was not properly given.

Fig#2 (Alternative parking sourced 2 mins after leaving site)




The evidence provided by Parking Eye on the PNC alleges that the time the vehicle entered the car park was xxxxxxxx am, and then a second photograph showing the same vehicle exiting the Bloom Street site at xxxxxx. The Driver does not dispute this occurred has provided the evidence that the site was not suitable for their needs and therefore sought suitable parking at an alternative site which accepted card payments within two minutes of leaving the Parking Eye site. The time entered the NCP car park can be seen on (see Fig #2) in the section ‘Short term parking tkt’ XXXXXX and xxxxxxxx. The evidence also shows that the method of payment used to honour the parking contract at the NCP site was made by debit card. Thus further evidencing the appellant’s version of events being the driver would have paid for parking at the Bloom Street site if the drivers preferred method of payment was available.

The appellant would also like to add that this matter could have been avoid if the signage at the Bloom Street site was clear for the driver to read prior to entering the site. The appellant would like to raise the point that the site would have been avoided if it clearly stated no card payment was accepted. (Fig#4,5,6)

Fig#4 Signage




Fig#5 Signage







Fig#6 Main Signage





3- Experiencing Technological Difficulties

The driver had experienced technical difficulties as the mobile device was unable to download the app due to administrative restrictions (see Fig#3).
Fig#3 – App Error





When attempting to call the Paybyphone number the mobile device ran out of battery. Thus leaving the only other method to purchase parking by cash which the driver did not have on the day in question. Leaving the driver with no other choice other than to leave the site. The length of time this had taken the driver to enter and exit the site is said to be 11 minutes, which is plausible considering they had to find a space, locate the signage and read it (which is dotted around the site), locate the pay station, walk back to the car, operate the phone, attempt to download the app or call to purchase parking, consider alternative options and then leaving the site.

This could have potentially been completed within the minimum grace period of 10 minutes however the driver states that it had taken them longer to locate the signs which each have different information on them. The appellant states that they spent approx. 5 minutes reading the Paybyphone section before “giving up” reading the text in the section under £100 due to the font size used on the signage being too small for the driver to read (see Fig #6 Main signage). The appellant claims that the reaming 6 minutes of their time spent on the site comprised of entering the site, locating the other signs, walking to and from the pay station, attempting to make payment and leaving the site.

Fig#6 Main Signage




The site has been visited by the registered keeper since the notice was served and the length of time taken to locate and read the signage in its entirety was approx. 10 minutes (see Fig#4,5,6). The driver is questioning the accuracy of the ANPR system as it may be configured incorrectly thus resulting in the reported time by ParkingEye alleging that the time taken was in fact 11 minutes which falls outside of the minimum grace period of 10 minutes which would trigger a potential fine.

4- The entrance signs are inadequately positioned and lit and signs in this carpark are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

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 car park and those facts only:


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

Fig# 10 below shows the 'Beavis case' sign as a comparison to the signs under dispute in this case:


Fig #10 – ‘Beavis case’ sign

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, on the Britannia Bloom Street site there are a total of 3 signs. Two signs are on the same post and are back to back and display different information. The main signage which informs of a fine is above the pay station. This is the only sign which clearly states the charge of any parking violation on the site.

As you can see from Fig #4 #5 #6 below the signs are sporadically and sparsely 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. 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.

ParkingEye’s main car park sign (Fig#6) on the Britannia Bloom street site is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read in addition to an excessive amount of small print text. Even with printed on white space background (see Figure3) the information informing the driver of the terms and conditions is illegible. In addition to reading the major contractual terms the keeper also needs to be aware of the privacy notices (given that ANPR is being used). As you can see from (Fig’s #4 #5 #6 below). The only notification regarding ANPR recording are the little camera logo’s at the foot of the signs. It is clear to see from these images alone that there is insufficient information regarding ANPR recording to inform the driver as to how and why this is in operation on this site.

Fig#4 Signage




Fig#5 Signage







Fig#6 Main Signage





5- Grace period: BPA Code of Practice - non – compliance

The BPA’s Code of Practice states (13) that there are two grace periods: one at the end of the parking event (of a minimum of 10 minutes) and one at the start.

BPA’s Code of Practice (13.1) 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 clearly states that the Grace Period to both enter and leave the car park should be a minimum of 10 minutes at either end of the alleged parking event. Whilst 13.4 does not apply in this case (it should be made clear - a contract was never entered in to), the reasonable grace period of 10 minutes on the start and end of the parking event, means the total time for being within the associated area is -9 minutes.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA): “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, not limited to disability.”

On this instance, the driver decided not to park at the site due to not being able to purchase parking and left believing that they were within the 10 minute grace period. In this case, ParkingEye is pursuing the driver for £100 as no parking was purchased on the day despite payment methods being available. The grace periods, in this case, are relevant for the time frame in which the driver decided whether or not to enter an agreement to park on the site. On this occasion, the driver had read the relevant signage, tried to honor a contract at the site and decided not to use the site. Given the challenges faced on this visit, the appellant argues that they believe that they may have completed this quicker than the alleged 11minutes and 28 seconds ParkingEye claim. If ParkingEye does have a 10 minute grace period in place at this site. The driver, in this case, stayed 1min 28seconds over the minimum 10 minute grace period thus triggering an automatic fine. The appellant puts it to ParkingEye to prove that the ANPR system has appropriately maintained and was calibrated to the nearest second on the day in question. Failing to do will seriously question the validity of the claim.

6- ParkingEye has not shown that the individual who it is pursuing is, in fact, the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.
Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.
As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with ParkingEye to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015: Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from me as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLAAssessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

7- The ANPR System is Neither Reliable nor Accurate

The ParkingEyes' Notice to Keeper (NtK) shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question.

The Notice to Keeper states:
“On XXXXXX the vehicle: xxxxxxxxx entered Britannia Bloom Street car park Manchester, at XXXXXXXAM and departed at xxxxxxxxx.”

These times do not equate to any single evidenced period of parking. By ParkingEyes' own admission on their NtK, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed.

Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states;
“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order.

I require ParkingEye to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.

As ‘grace periods’ (specifically the time taken to locate any signs, observe the signs, comprehend the terms and conditions, decide whether or not to purchase a ticket and either pay or leave) are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle number plate allegedly entering and leaving the car park at specific times (10 minutes and 48 seconds apart), it is vital that ParkingEye produces the evidence requested in the previous paragraph.

8- No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

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

9- No Planning Permission from Manchester City Council for Advertising Consent for signage

ParkingEye do not have Planning Permission for Advertising Consent for signage exceeding 0.3 m2.

Anyone who displays an advertisement, or uses an advertisement site, or knowingly permits someone else to do so, without the consent required for it is acting illegally.

Displays which are unauthorised until consent is granted will amount to a criminal offence and can be subject to prosecution in the Courts where substantial fines can be imposed.

I believe ParkingEye are/have been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment for which no planning application is valid.

I request ParkingEye provide evidence that the correct Planning Applications were submitted (and approved) in relation to Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates (12/01/2019)





Fig 1 (parking meter no Card option)


Fig#2 (Alternative parking sourced 2 mins after leaving site)


Fig#3 – App Error





Fig#4 Signage




Fig#5 Signage







Fig#6 Main Signage



Fig # 7 Lack of Signage by bays





Fig #8 Lack of signage2



Fig #9 Lack of signage3

Coupon-mad

Typos x 2 here:

2- The Driver did not accept the parking terms and sought alternative parking.

The driver did not accept any parking contract as the site could not accommodate the drivers preferred method of payment. Due to this the driver decided to leave by driving out of the site as pictured in the Parkin charge notice, to find alternative parking within minutes 2 minutes.

This is 'parkin'!

FuminGuy

Parkin is lovely with some custard or ice cream..

Thank's CuponMad I've made those changes. Is it all good to send as a word doc or pdf to POPPLA? 🙈

FuminGuy

I think the poppla 28 day appeal process may have expired? but im not sure if i calculated the expiry date correctly? is there anything i can do if this is the case?

It says the poppla code entered is not valid?

KeithP

You get thirty-two days from the date on the letter giving you the PoPLA code.

Yes, it does look like you have missed that boat.

Umkomaas

FuminGuy wrote: »

Parkin is lovely with some custard or ice cream..

Thank's CuponMad I've made those changes. Is it all good to send as a word doc or pdf to POPPLA? 🙈

FuminGuy wrote: »

I think the poppla 28 day appeal process may have expired? but im not sure if i calculated the expiry date correctly? is there anything i can do if this is the case?

It says the poppla code entered is not valid?

Very much like parkin!

Coupon-mad

You'd have won that easily, re 11 minutes. That was silly.

But now you will have to look out for a court claim, if they try, and defend that instead.

FuminGuy

Thank you all for your time, help and advice.
I am Gutted ... I just had too much to juggle (work / life balance) and dropped the ball on this one.

A lesson to learn:
Improve organisational skills, or start delegating more

I'm guessing there is a lot to learn for a court appeal? will my PoPLA appeal be a good foundation or will it need to be completely re-worded and formatted ?