Desbury Mecca Bingo ParkingEye

0777mxs

Having read all the threads, I logged my appeal with POPLA and ParkingEye - both sadly have been unsuccessful. Below is the latest email received, if anyone can help with a reply, this would be appreciated

Thank you for your correspondence received in relation to the above referenced Parking Charge, which was issued following a parking event that took place on November 2018 at Mecca Bingo Dewsbury car park.

Please note that ParkingEye will not be supplying our contract with the landholder at this stage. This document is commercially sensitive and largely irrelevant, and we take the view that supplying the same now would be disproportionate.

With regard to ParkingEye’s position as Claimant, we would like to bring to the court’s attention HHJ Moloney QC’s finding that ParkingEye was bringing the claim as principle. In other instances, when presented with ParkingEye’s contracts, District Judges have found that ParkingEye is bringing the claim as agent. In both instances, it has been found that ParkingEye has standing to bring the claim.

ParkingEye is authorised to install signage setting out the terms and conditions of parking, issue Parking Charges for a breach of these terms and conditions, and to recover and retain these charges. Please note that ParkingEye is presented as the contracting party on the signage. On the correspondence sent to the Defendant, and on the claim form, ParkingEye is identified as the creditor.
Ultimately, it is the Claimant’s position that ParkingEye can lawfully bring the claim whether we are viewed as principle or as agent.

ParkingEye’s Parking Charges are issued on the basis of a contract with the motorist. Signage at each site sets out the terms and conditions under which a motorist is authorised to park, be that by payment of the appropriate paid parking tariff or by parking within a limited stay period or similar, and that a Parking Charge will be payable if the same are not met.

ParkingEye considers that it is trite law that a contract can be formed in this way and this position is supported by the Courts’ findings in the case of ParkingEye v. Beavis. At first instance, HHJ Moloney states that, “it is well established that a valid contract can be made by offer, in the form of terms and conditions set out on the notice, and acceptance, in the form of one’s car in the space provided. This is not a case like Thornton v Shoe Lane […] any unequivocal act of acceptance will suffice, and the signs clearly state (as anyone would expect nowadays) that parking constitutes acceptance.”

More recently within the Supreme Court Judgment, which was decided in ParkingEye’s favour, Lord Mance states that, “There is common ground between all before the court that the relationship between ParkingEye and Mr Beavis was a contractual relationship, whereby Mr Beavis undertook not to park for more two hours and, upon any breach of that obligation, incurred a liability of £85, reducible, in this case, to £50 if he had paid within 14 days of ParkingEye’s demand.”

He then goes on to state that, “[…] I am satisfied that it is correct in law. The terms of the signs which Mr Beavis must be taken to have accepted by conduct in entering and parking in the car park are to that effect. Mr Beavis thereby expressly agreed to stay for two hours maximum […] and to pay the stipulated sum if he failed so to comply.”

ParkingEye ensures that signage is ample, clear and visible, so that it complies with the British Parking Association (BPA) Code of Practice. ParkingEye wish to ensure that the motorist is bound when they enter and remain at a site, so that all users of the site are obliged to comply with the terms.

Within your correspondence, you have questioned the ANPR equipment used by ParkingEye. ParkingEye’s Automatic Number Plate Recognition (ANPR) cameras and software are fully compliant with the British Parking Association Code of Practice. We ensure that the cameras are checked regularly by both automated routines and Technical Support Engineers to ensure that they are in good working order, and that they are producing accurate data.

There is no evidence to suggest that a Parking Charge has been issued incorrectly and ParkingEye goes to great lengths to ensure that all Parking Charges are issued correctly. The data taken from the Automatic Number Plate Recognition cameras is sent to ParkingEye, where it undergoes a checking process of up to 19 stages. This ensures that no errors have been made. There are various other procedures in place to ensure that Parking Charges are issued correctly and there is no reason to believe that an error has occurred in this case.

In respect of the Notice to Keeper issued on 15/11/2018, Schedule 4 of POFA 2012 states:

s.2(a) In the case of the Keeper, an address which is either—
(i) an address at which documents relating to civil proceedings could properly be served on the person concerned under Civil Procedure Rules; or
(ii) the Keeper’s Registered address (if there is one);

(b) “Keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a Registered vehicle is to be presumed, unless the contrary is proved, to be the Registered Keeper;

s.9(4) 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.

s.9(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.”

We can confirm £100 remains outstanding.

ParkingEye is prepared to take legal action if necessary and should court proceedings be issued, further costs will be incurred. These will include, but are not limited to, the court claim issue fee and the solicitor’s
costs.

Yours sincerely,
ParkingEye Enforcement Team

Coupon-mad

The only thing to save this from a court claim is to complain to Mecca Bingo Dewsbury who can cancel it in the blink of an eye with one email (might be harder now you've made PE spend money on POPLA though).

Landowner complaint is always Plan A, before POPLA.

Half_way

Again, a landowner complaint is key here, although you must tread very carefuly, otherwise you will chuck everything away, and make it extremely hard to progress, so far you've made a good start at the chucking all the chances away aspect.


Were you a customer of mecca bingo?

why did your vehicle receive a parking charge notice?
was your vehicle parked on site for the duration stated, or did it make two visits?


Do NOT under any circumstance send anything to the landowner before you have had it checked here first

You need to answer the what/why and how questions above.


You should also under no circumstances mention to the landowner

anything about POPLA or rejections from parking eye, you are aiming for a full cancellation from Mecca, or at the very last mecca stating that they do not want their agents ( parking eye ) pursuing this matter any further

0777mxs

This is the original letter....
I write to you as the registered keeper of the vehicle XXXX, having seeked legal advice, I wish to appeal the £100 Parking Charge Notice (PCN) issued by ParkingEye Ltd.

As the driver I was unaware I had parked in Mecca Bingo Car Park, I had assumed I had parked in the council car park which is adjacent. I confirm I had used the council parking machine to buy a ticket.

As the keeper of the car, I wish to put forward to you that a ticket was purchased , the car was parked in the Mecca Bingo Car Park, but due to unclear signage a ticket was purchased from the machine nearest to the car (less than 50 feet away) It seems this machine was only for cars parked in the Kirklees Council Car Park and not for the adjacent car park belonging to Mecca Bingo.
As there is no clear signage anywhere stating the area allocated only for Mecca Bingo customers, I was unaware I had purchased the ticket from the wrong machine. I genuinely did not know I had parked in the Mecca Bingo Car Park, especially as the Kirklees Car Park is 5p an hour compared to the Mecca Bingo charge of £4 for 24 hours and with me only staying for an hour, it made no sense why I would park in the Mecca Bingo Car Park. If I had parked in the bay opposite, that would have been the Council Car Park.

1. The signs are not prominent, clear or legible
2. Keeper Liability Requirements and the Protection of Freedom Act
3. No evidence of Landowner Authority
4. ANPR Accuracy and Compliance
5. No Contract was entered into between the Parking Eye and the Driver or Registered keeper
6. The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)


1 & 2. 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

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines '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 assessment, as appellant, 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 not clear and is in small font which makes it impossible to read as you are going into the car park, especially as the signage is on the edge of a mini roundabout. The driver was able to park the car without driving pass any of the signs and there is one sign placed at the roundabout as you leave but this does not enable the driver the chance to read this unless they physically get out of the car. The signage is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.
The BPA Code of Practice states:

"18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about
the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car
park is managed and that there are terms and conditions they must be aware of."

Furthermore, the postal parking charge notice received, states that 'the signage displayed at the entrance to and through the car park, states that this car park is private land managed by Parkingeye.

There were no informational signs at the entrance of the car park, informing drivers of the required information. Instead there was a plain 'P' sign and an arrow, giving no indication of it being a private, paid car park. This makes the parking charge notice factually incorrect, as well as going against BPA guidelines.

After seeking legal advice, I believe ParkingEye to be in breach of the BPA Code of Practice by not providing the required information at the car park entrance.

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.

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 placed, indeed obscured and hidden in some areas. As you enter the roundabout, the only signage that can be seen are on the turning of the roundabout and no further signage can be seen if you are parking to the left of the carpark near the entrance. ParkingEye have no signage with full terms which could be read at eye level, for a driver in moving traffic to read on arrival. The only signs are up on poles with the cameras and were not noted or read by the occupants of the car. They 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.

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 some 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.

Parking Eye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park but this is not clear. I made a special visit to the car park to ascertain the positioning and quality of the sign. They are positioned further inside the entrance and would only be visible to the driver if they went right into the car park and parked further along. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead, as the sign is on the entrance to the roundabout the signs are not seen by the driver at all if you turn left into the car park and park where the driver did. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Also because of this visit it is noted that the sign is a forbidding one, so no contract can be made with the driver.
The only signage in font that is eligible is as on the edge of the roundabout which has the Pay and Display sign for Mecca Bingo but the arrow points to the right of the car park not to the area behind where the car had been parked. There is no signage making it clear that the car park is split into two with one area being the Council car park and the other being the Mecca Bingo Car Park. The council side of the car park does have signage that states it is the Kirklees Car Park and to use the correct machine but the Mecca Bingo site has no such signs. The Mecca Bingo ticket machine is near the entrance to the Building and cannot be seen from the naked eye at all from where the car had been parked.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount that Parking Eye is now demanding, rather than simply the nominal amount presumably due in a machine on site.


The alleged breach occurred as there is no clear indication of how the car park is split so that some of the Car Park spaces belongs to Parking Eye whilst the majority of them belong to the Kirklees council. As you are entering from a mini roundabout there is only one visible sign indicating that the RIGHT of the car park belongs to Mecca Bingo. There is no clear signage that this part belonged to Mecca Bingo. These are not mitigating circumstances but failure by ParkingEye plus to ensure that their signs were to be seen accordingly. The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. The signs must be visible by all drivers; these requirements were not met and I demand strict proof that these signs are visible by all drivers and there is clear signage of the section of the Car Park belonging to Parking Eye.

The BPA Code of Practice, Appendix B, under Contrast and illumination:

Furthermore, the landmark case of ParkingEye v Beavis [2015] UKSC 67 establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges. ParkingEye did not provide me with evidence that such signs, if present, were available throughout the car park and visible, from the area where the car was parked at the time of the event.
Breach of the BPA Code of practice, paragraph 18.2. Terms & Conditions / Entrance signs.

The BPA Code of Practice, paragraph 18.2 states:

"18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about
the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car
park is managed and that there are terms and conditions they must be aware of."

Furthermore, the postal parking charge notice received, states that 'the signage displayed at the entrance to and through the car park, states that this car park is private land managed by PrivateEye.
There were no informational signs at the entrance of the car park, informing drivers of the required information. Instead there was a plain 'P' sign and an arrow, giving no indication of it being a private, paid car park. This makes the parking charge notice factually incorrect, as well as going against BPA guidelines.

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 operators 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.''


Letter Height Visibility is discussed here:

''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.''

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.

So, for this appeal, I 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. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

3. 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).

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. ANPR Accuracy and Compliance

I require ParkingEye Ltd to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that ParkingEye Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all).

In addition to showing maintenance records, I ask ParkingEye Ltd to show evidence of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators!!!8217; Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
!!!8226; be registered with the Information Commissioner
!!!8226; keep to the Data Protection Act
!!!8226; follow the DVLA requirements concerning the data
!!!8226; follow the guidelines from the Information Commissioner!!!8217;s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

5. No Contract was entered into between the Parking Eye and the Driver or Registered keeper

I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. ParkingEye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.


6. The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on 24th November 2018. The relevant period is therefore the 14 day period from Saturday XXX November to Saturday XXX November 2018 inclusive. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered on the second working day after the day on which it is posted; and for this purpose, means any day other than a Saturday, Sunday or a public holiday in England and Wales. The letter date stated on the PCN is XXXX and was delivered on the 28th November, (i.e. outside of the relevant period) and coincidentally the same date the parking charge discount of £60 ended.

I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed unfair under the Unfair Terms in Consumer Contract Regulations 1999.

Le_Kirk

You need to go through the text above and remove the errant !!!8226 which are left over from a forum glitch last year.

Coupon-mad

You blew your point #6 right out of the water with this, which is a classic rookie error and an example of why we give people templates, to stop you saying ''I parked'':

As there is no clear signage anywhere stating the area allocated only for Mecca Bingo customers, I was unaware I had purchased the ticket from the wrong machine. I genuinely did not know I had parked in the Mecca Bingo Car Park, especially as the Kirklees Car Park is 5p an hour compared to the Mecca Bingo charge of £4 for 24 hours and with me only staying for an hour, it made no sense why I would park in the Mecca Bingo Car Park. If I had parked in the bay opposite, that would have been the Council Car Park.