Grace Period

Agent_Gibbs

Having now visited the cap park, so say it's well signposted would be an understatement as there at least 12 signs within a very small area, so poor and inadequate signage, there might be a struggle to put that point over.
As for no landowner authority, where is this information found?

MistyZ

Agent_Gibbs wrote: »

Having now visited the cap park, so say it's well signposted would be an understatement as there at least 12 signs within a very small area, so poor and inadequate signage, there might be a struggle to put that point over.
As for no landowner authority, where is this information found?

The 'no landowner authority' section is pretty standard. Go to the Newbies' thread post 3: 'Second Stage Appeal - POPLA or IAS' and scroll down to 'landowner authority' where you'll find a link.

There's more to signage than sheer quantity! PPCs almost invariably fail to meet BPA standards. Again, check out the signage section in the part of the Newbies' thread mentioned above. Photos to embed in your appeal illustrating key points would be a good idea.

Perhaps we all start off thinking that for some obscure reason car park signs just don't register with us personally - then when we really study them we realise that they are not designed to convey information clearly!

As for your appeal which looks pretty good to my (non-expert) eye, I'd be inclined to introduce the grace periods section by stating that the driver was unable to find a space to park etc., just as you do on this thread.

Fruitcake

Do the signs clearly state that driving around and leaving without parking will result in a charge?

Did you receive a "Driving In and Driving Out Without Parking Charge Notice?

Are any of the signs high up on poles, obscured by bushes, damaged or defaced, facing towards parked vehicles and not facing traffic that is driving round looking for a space? Can the signs be read and a contract formed from a moving car?

If the signs don't cover this, include the inadequate signage point.

Agent_Gibbs

Fruitcake wrote: »

Do the signs clearly state that driving around and leaving without parking will result in a charge?

Did you receive a "Driving In and Driving Out Without Parking Charge Notice?

Are any of the signs high up on poles, obscured by bushes, damaged or defaced, facing towards parked vehicles and not facing traffic that is driving round looking for a space? Can the signs be read and a contract formed from a moving car?

If the signs don't cover this, include the inadequate signage point.

Thanks Fuitcake, this really does help.

Agent_Gibbs

Fruitcake wrote: »

Did you receive a "Driving In and Driving Out Without Parking Charge Notice?

In answer to your question - No the keeper did not receive a Driving In and Driving Out Without Parking Charge Notice - just a PCN

Fruitcake

Agent_Gibbs wrote: »

In answer to your question - No the keeper did not receive a Driving In and Driving Out Without Parking Charge Notice - just a PCN

Precisely. The vehicle was never parked so should never have received a PCN.

Agent_Gibbs

Latest update - Draft 2

POPLAVerificationCode: *******
Vehicle Registration: ******,

Before reading this appeal please take into consideration the following –

• Had the driver of the car know that there were no spaces to park they the driver would not have entered the car park.
• The ParkingEye signage cannot be read from a moving car.
• The ParkingEye signage does not allow for Grace period.
• ParkingEye issued a PCN for a car that was never parked.
The registered keeper of this vehicle received a letter dated 06/04/2019 acting as a notice to the registered keeper. My appeal to the Operator –ParkingEye –was submitted and acknowledged by the Operator on 13/04/2019 and rejected via an email dated 29/04/2019.
I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1.Grace Period: BPA Code of Practice 2019 –non-compliance
Under the new code of practise (15/03/2019) Kelvin Reynolds, BPA Director of Corporate Affairs, states the following - there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. Our 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,” he explains.
“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.”
The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.
Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”
https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods?fbclid=IwAR347R1ULeXKZvPz7ArWZ3hBl-5-1EV949-dc4oHbU0NQreZcvRZDrqanQg

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge 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.

In this case, no other party apart from an evidenced driver can be told to pay. I am the keeper 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 the Operator 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 myself 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 POPLA Assessor 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.''

3 No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.
Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to:
“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”
ParkingEye’ NtK simply claims “the time in car park ********.”
The NtK separately states that the vehicle “entered ****** at 10:17:39 and departed at 10:30:35”. At no stage do ParkingEye explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.
By virtue of the nature of an ANPR system recording only entry and exit times, ParkingEye are not able to definitively state the period of parking.
I require ParkingEye to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.

4 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 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

5 The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.
The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras.
Paragraph 21.1 of the BPA Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.
ParkingEye signs do not comply with these requirements because these car park signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.
The ParkingEye main sign in the ****** (see Figure 1) states: Need a photo of this
“We are using cameras to capture images of vehicle number plates and calculate the length of stay between entry and exit at all times including bank holidays.”
Specifically missing from this sentence is the vital information that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices. The only reference to Parking Charge Notices on ParkingEye sign makes no mention of Parking Charge Notices being issued as a result of images captured by the ANPR cameras and instead merely states (see Figure 2):
“Failure to comply with the following will result in the issue of a £100 Parking Charge Notice (£60 if paid within 14 days of issue).”
In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.
This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: 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.
and Paragraph 69: Contract terms that may have different meanings:
(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.
Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 because the operator 'fails to identify its commercial intent':
http://www.legislation.gov.uk/uksi/2008/1277/contents/made
Misleading omissions: 6. - (1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2) -
(a) the commercial practice omits material information,
(b) the commercial practice hides material information, (c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or (d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''
It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.







Figure 2

Coupon-mad

[STRIKE]Under the new code of practise (15/03/2019)[/STRIKE] In his official capacity as Director of Corporate Affairs, Kelvin Reynolds stated in a BPA article linked below, that ''there is a difference between ‘grace’ periods and...etc''

That article is not to do with any new CoP and nor was it in 2019, so change that introductory point as above.

Remove all this unnecessary chit chat, POPLA don't need to know any of it:

The registered keeper of this vehicle received a letter dated 06/04/2019 acting as a notice to the registered keeper. My appeal to the Operator –ParkingEye –was submitted and acknowledged by the Operator on 13/04/2019 and rejected via an email dated 29/04/2019.
I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

No 3 should be your FIRST point, as that gets to the point quicker, and change the ending of that point to:

[STRIKE]I require ParkingEye to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.[/STRIKE]

The fact is, the driver was unable to find any parking spaces at all, despite driving round and queuing, as it was too busy, and so the driver left and found alternative parking at xxxxxxxx about 5 minutes later.

If you can attach proof of paying to park down the road 5 mins later, embed a scan as proof as POPLA love that!

Also, where is your Dashcam or GPS Tracker evidence, that will kill it, surely!

Fruitcake

There are two grace periods in the BPA CoP. You should mention both.

You still need to include the long "Inadequate signage" point.

In addition you need to show that the signs fail to state that a parking charge will be issued even if a vehicle does not park. Since it is not mentioned on the signs and the vehicle never parked, no contract can have been formed or indeed broken.

Agent_Gibbs

Fruitcake & Coupon-Mad, thank you for your help/input this is appreciated.

The Dashcam and GPS tracker match to the times of the PCN so it will not really help.

The driver did find a place to park and it was free parking