Aire Street Leeds / Parking Eye - 16 minutes = £100

MistyZ

What so-called evidence have they provided?

I haven't read your POPLA appeal, but is there anything in their evidence which fails to 'answer' the points you made?

I bet they've included lots of pictures of signage but, assuming you had a signage section, do any of those images really refute what you said about signage? For example, if you argued that their signs were too high to read and they've only provided close-up photos of signs, point out that their evidence fails to address that point.

Go through all their evidence and see if any of it actually relates to your POPLA appeal. If it does relate to it check whether it is adequate evidence or not. If it isn't then point out the inadequacy and state that the appeal must therefore be upheld.

A concise 2000 word piece is tough for anyone whose first language isn't English. Post your draft rebuttal here if you want help with it.

KeithP

MistyZ wrote: »

A concise 2000 word piece is tough for anyone whose first language isn't English.

And a concise 2000 character piece is even tougher - for anyone.

Gentleman

Thank you all for your comments,

I have tried to find examples from other cases that could help me to write my comments. Please find them below, I am including their "evidences" and then my comment to each evidence (If it is not the right way of asking about my comments, please let me know and I will edit the post);

1/ Rules and Conditions:
”…We have included a signage plan showing that there are signs situated at the entrance, exit and throughout the car park displaying the terms and conditions of the site. …”.

•Signage discrepancies: The signage plan is out of date and is not accurate. There are 2 P&D in the same location near to the entrance/exit of the car park, so if you park in the farthest position of the car park you have to go to the entrance to find the P&D machines.
•The signage evidence utterly fails to show where the signs are or what they say in 2018. The aerial view is unproven by photos and could merely be an imaginary game of join the dots.

2/ Authority;
“ParkingEye can confirm that the above site is on private land, is not council owned and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent).” It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract.”.

• ParkingEye has no standing or authority to operate According to Leeds City Council, the planning permission for the car park has been granted to a different operator, Elite Parking Ltd Application Number: 15/07448.
The British Parking Association Code of Practice Paragraph 7.1 requires that, if the operator is not the landowner, its contract must include the capacity to take legal action in its own name, “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.
ParkingEye is required to provide a contemporaneous unredacted contract that demonstrates this capacity. To make out the terms, the exemptions, times of operation, tariffs, whether PE or 'Elite Parking' are the party who have authority from the (separate) landowner to enforce contracts in the courts if necessary. The statement must explicitly confirm the legal capacity and not use a vague description that charges may be collected in accordance with the BPA Code of Practice.
In the interests of being comprehensive, I would also like to draw POPLA’s attention to the breach of contract exhibited by the landowner and Leeds city council, with the council’s planning permission (application reference 15/07448/FU) being dependent upon the landowner completing resurfacing and drainage work by the 1st of June 2016. This condition remains unmet.

3/Grace Period
“ParkingEye operates a minimum grace period of ten minutes or more on all sites which gives the motorist time to enter a car park, park, and establish whether, or not, they wish to be bound by the terms and conditions of parking.
A grace period of 10 minutes or more is in place at this site which is fully compliant with clauses 13.2 and 30.2 of BPA code of practice which states ‘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’.”

•The Code of Practice of the British Parking Association requires parking companies to allow a minimum of 10 minutes to exit the car park at the end of the parking period. This means, for example, that if you were timed spending 2hrs 9 minutes in a 2hr limit car park, then your ticket should be cancelled on appeal based on this rule.
Now, the 10-minute grace period applies only to the period after parking. However, it is completely logical that if it takes 10 minutes to leave the car park, it could have equally taken 10 minutes to park the car in the first place.
Further, 10 minutes is just an arbitrary figure picked by the British Parking Association. There are cases where it has taken over half an hour to exit a car park due to the surrounding roads being busy.
In my case, the location of P&D machines, bad signage and the current state of the ground, didn´t allow to spend less time than 16 min to entry, read the T&C and exit from the parking.
• They didn´t mention anything about the current conditions of the parking, which have a big impact on the time spent parking, reading the T&C and going out from the car park; It is therefore argued that the duration of visit in question is not an unreasonable grace period given. So their evidences fail to address this point.

4/ Signage
“ParkingEye ensures that all its signage is clear, ample, and in keeping with the British Parking Association (BPA) regulations.
The signage at this site demonstrates adequate colour contrast between the text and the backgrounds advised in the BPA Code of Practice, you will note the colour contrast at this site is black text on white background.”

•They've only provided close-up photos of signs, point out that their evidence fails to address this point. The pictures are not showing how the signage look like in the car park, as they are too high to read and obscured by lack of light, as the event occurred at night.


5/ ANPR
(I am not including their evidence as it´s a long text, you can check it in the Google drive link mentioned in a previous post.)

•The cameras must be used in a transparent manner. Now, the problem with ANPR tickets is that they time how long you were in the car park, not how long you were actually parked. For example, if the signage states ‘Free parking for 2 hours’, you may assume you can park for 2 hours. However, in an ANPR car park, if you were to park for 2 hours and take 10 minutes to find a space, and 5 minutes to exit the car park, you may be judged to have stayed 2 hours and 15 minutes. This author would argue therefore that in order to meet the transparency requirement, the signage should state the timing is from the point of entry and exit to the car park. If that is not done, how could a motorist have reasonably known this?
•The signage must say what the parking company will use the ANPR data for. Signage Type 1, Type 2 & Type 3 says “car park monitored by ANPR systems”. To a member of the public this could mean anything; it could be to look for uninsured cars, stolen cars, or anything. The author would strongly suggest that for the timing to be compliant it should state that the ANPR system is used to determine the length of stay in the car park.


6/ CONTRACT WITH PE
"All signs that pertain to the general terms and conditions of parking contain text which explains that, “[…] by entering this private car park, you [each motorist] consent, for the purpose of car park management, to: the capturing of photographs of the vehicle and registration by the ANPR cameras […] and to the processing of this data […]”. In turn, consent is also provided so as to allow ParkingEye to make a request for registered keeper from the DVLA “where the Parking Contract is not adhered to”. The wording used clearly details that the Parking Contract in question commences when the motorist “enters” the car park and that the data from the ANPR system will be used to enable ParkingEye to take enforcement action against those who breach the parking terms and conditions in operation."

•BPA code of practice; If a driver is parking with ParkingEyes´ permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.
•There is no contract between the driver and the parking, as the terms and conditions were reviewed and decided not to park.
•The picture “Type 2 GDPR Signage Project 19.03.2018.jpg” is showing the first signage you can see when you are approaching to the parking, it´s placed on the wall on the left side of the entrance/exit at 300mm from the floor, I was wondering how it´s possible to read that signage from the car when you are trying to access to the car ark and at the same time not to block others cars? Is not possible, you have to park the car before reading it. Also, the lengthiness of Parking Eyes´s signage (in terms of word count) with a significant amount of text included in an “Important Notice” section in tiny red text at the bottom of the sign, is not easy to read it.

7/ PRESTIMATION OF LOSS...
“You have stated that you do not believe that the Parking Charge amount is a pre-estimation of loss, or that it is extravagant, unfair or unreasonable. In this regard, ParkingEye relies upon the Supreme Court decision in the matter of ParkingEye v. Beavis [2015] UKSC 67, which was found in ParkingEye’s favour and concerned the value of our Parking Charges.
The Supreme Court considered the Defendant’s submissions that the Parking Charge should be considered to be penal and unfair, but the Justices supported the findings of the lower courts, where the charge was found to be neither ‘extravagant’ nor ‘unconscionable’.
In terms of the amount of the Parking Charge, this Judgment, along with the British Parking Association Code of Practice at paragraph 19.5, support the level of Charge issued by ParkingEye, and the Justices note that, “The charge is less than the maximum above which members of the BPA must justify their charges under their code of practice”.

•The ParkingEye Vs Beavis case has meant that parking companies can charge amounts that do not represent loss, and instead are penalties. However, the Beavis case was based on the facts of that particular case – an overstay in a free car park. In the case of ParkingEye Vs Cargius it was held that the Beavis case did not apply since parking was paid for rather than free for a limited period. The judge distinguished it by reasoning that in Beavis the charge was justifiable as it was their only income, whereas in a paid car park, only the hourly charge is being lost by overstaying (e.g. £2); anything above that is clearly a penalty.

Thank you very much for your help

Redx

you only need a short rebuttal to each point

as we said earlier , you have 2000 characters to use , the post above is far in excess of 2000 characters , so will not fit in the box online


so more like post #28 in this thread


https://forums.moneysavingexpert.com/discussion/comment/76034723#Comment_76034723

Gentleman

Thank you Redx,

My mistake, I was thinking in 2000 words instead of 2000 characters.

The post reference you mention above has been very helpfull, and it´s quite similar, don´t you think so?
Please see my comments below (1915 characters),

Observations from P.E.’s evidence pack;
1. P.E. no acknowledgement of exit grace period
2. P.E. have produced no evidence of landowner authority
3. Signage out of date and not readable

Response
1. P.E. acknowledge they have a minimum grace period on entry of 10 minutes for the driver to agree to the parking terms and conditions. In this case, 6 minutes were taken by the driver before being able to park and read the signs.
P.E. have not however acknowledged there is an exit grace period; outlined in BPA CoP [Jan 2019] s13.2 & s13.4, which states that there is an exit grace period (minimum of 10 minutes) for the driver to leave the car park after the parking contract has ended. In this case, 10 minutes were taken before leaving the car park, 16 min in total.
2. P.E. haven´t provided a written statement on behalf of the landowner. As per the BPA CoP [Jan 2019] s7.3 there are a five points the written authorisation must address, none of which are provided from P.E.
3. P.E. have only provided 2 photos of signage in Section F, even though they are showing in the Signage Plan (page 39) more than 12 signage locations, why P.E. is just providing 2 pictures?
Pic 1 (page 35) was taken in 2016, and it is over 3 years & Pic. 2 (page 36) was taken in March 2018 and it is 3 months old, and therefore are not representative of the current state of the signage.
P.E. provided an aerial view as a “Site Overview” (page 39) that utterly fails to show where the signs are or what they say in 2018. This view is unproven by photos and is not updated to the current state of the car park.
Furthermore, the terms on the bottom of ‘Sign Type 2’ (page 41) are near impossible to read when colour printed from the pack. If the signs are not readable on an A4 piece of paper, it is hard to comprehend reading these above eye level when erected on site or when it is 300mm above the ground like the one in the entrance.

Redx

Both you and MistyZ then, even though it's never been words , lol
Myself and KeithP tried to steer it to 2000 characters in our replies ��

As for your rebuttal it does mirror the one I linked but for one glaring error

The BPA Cop is January 2018 , not 2019 , so alter all those dates because they are incorrect

Check that all the facts you quoted match the evidence pack you received , so pictures and signage locations and signage issues etc , also check the landowner authority and any contract errors

Ie make sure that your rebuttal facts are factually correct

Double check the character count is below 2000 and then copy and paste into the popla rebuttal box and submit it

And yes , it was a similar case which was why I linked it

Gentleman

Thank you Redx for your help and comments,

I have made the changes you said and I submited them to POPLA.

I'll keep you up to date
Thanks

Coupon-mad

NEVER say this, please can posters STOP adding the two periods together!

16 min in total.

Gentleman

Hi all,
Finally, I have got a decision from POPLA..., it is Successful, I won.

Find below the full assesment and decision, hopefully it will help other people;

Assessor summary of your case;
The appellant disputes that the operator has allowed the correct grace periods. They advise that the signage at the site is not prominent and cannot be seen from all spaces at the site. They explain that the signage does not give sufficient notice of the amount of the charge. They dispute that the operator has a valid contract with the landowner. They advise that the PCN fails to meet the requirements of the Protection of Freedoms Act (POFA) 2012. They dispute the accuracy of ANPR cameras. The appellant has provided a document detailing their appeal.

Assessor supporting rational for decision;
When assessing an appeal POPLA considers if the operator has issued the Parking Charge Notice (PCN) correctly and if the driver has complied with the terms and conditions for the use of the car park. As the driver of the vehicle has not been identified, I must ensure that the operator has complied with the strict requirements of the Protection of Freedoms Act (PoFA) 2012. PoFA 2012 is used to transfer liability for the PCN from the driver of the vehicle, to the keeper of the vehicle when the driver has not been identified. I must consider if the notice meets the requirements of PoFA 2012 (Schedule 4, Paragraph 9(2)), I am satisfied that the Notice to Keeper that was sent on 14 June 2019 meets the requirements and was sent within the “relevant period”, as outlined within the act. As such, liability for the PCN is with the registered keeper of the vehicle, which in this case is the appellant. The operator has provided photographs of the signage, which it has installed around the car park. These signs show the following terms and conditions: “Up to 1 hour £2.00… Motorists must enter their full, correct vehicle registration when using the payment machine… Failure to comply with the terms & conditions will result in a Parking Charge of: £100”. The operator has issued a Parking Charge Notice (PCN) as the driver failed to make an appropriate tariff payment. The Automatic Number Plate Recognition (ANPR) images the operator has provided show that the vehicle entered the car park on 11 June 2019 at 00:30 and left at 00:47. A total stay of 16 minutes. The appellant disputes that the operator has a valid contract with the landowner. The operator has not provided a copy of the contract or a witness statement to show that it has a valid contract in place. As the operator has failed to show that it has a valid contract with the landowner the appeal is allowed. As I have allowed the appeal, I do not need to consider any further grounds of appeal.

Also, I would like to complain to the MP, do I have to do it to my MP or to the MP from Leeds?

Thank you very much for your help.
Regards

Umkomaas

Well done, good win.

The operator has not provided a copy of the contract or a witness statement to show that it has a valid contract in place.

In view of this quite clear statement from POPLA, why not give the PPC a dose of their own medicine by making life uncomfortable for them?

Write to the DVLA and complain that POPLA has grave doubts that the PPC has authority to operate at this site. Ask that the DVLA investigates and reports back to you. In particular they should calculate how many charges have been issued, and should there be no valid landowner authority, the PPC should be required to cancel all charges for that site and repay motorists who have been misled and paid. Email in the first instance:

ccrt@dvla.gov.uk

If you get a fob off from that approach, follow it up with a full blown Freedom of Information request. It will be more difficult for them to hide under FOI.

https://www.whatdotheyknow.com/

You might also consider issuing the PPC a Letter of Claim prior to a possible county court claim for breach of the DPA. Read these:

http://parking-prankster.blogspot.com/2017...0-for-data.html

http://parking-prankster.blogspot.com/2016...orist-wins.html

https://www.parkingcowboys.co.uk/data-protection-act/

There has to be some process of backlash against PPCs to make them think twice before issuing tickets on a scattergun basis and their unchecked harvesting of personal data from the DVLA on an industrial scale.