Help on Comments on ParkingEye Evidence

IamWood

Hello there,

After recent visit to the London Southend Airport, I got a PCN from Parking Eye Ltd, who claimed I had entered their retail permit holder only car park without authorisation inside the airport about 6 minutes 21 seconds.

Under the guidance of this forum I appealed to PE and was subsequently rejected. I appealed through POPLA too. Today I received an email from POPLA asking me to provide comments on the operators evidence.

Please could anyone advise what comments I should provide?

My POPLA appealing letter and the evidence from PE are attached below.


Thanks a lot!

IamWood

POPLA appealing letter:

POPLA Verification Code: XXXXXXX
Vehicle Registration: XXXXXX

I, the registered keeper of the vehicle, received a letter dated 13/08/2019 acting as a notice to the registered keeper. My appeal to the Operator (Parking Eye) was submitted and acknowledged by the Operator on 20/08/2019 and rejected via an email dated 04/09/2019. 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 – non-compliance The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start (the duration of the visit in question was only 6 minutes 21 seconds, claimed by ParkingEye Ltd)
2. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance The BPA Code of Practice point 20.5a stipulates
4. No legally binding contract between an The ParkingEye Ltd. and the driver of this vehicle

1. 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 a minimum of 10 minutes) and one at the start.
BPA’s Code of Practice (13.1) states that: “Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”
BPA’s Code of Practice (13.2) states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”
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.”
BPA’s Code of Practice (18.5) states that: “If a driver is parking with your 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.”
The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. Whilst 13.4 does not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.
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.”
As stated earlier in this section, whilst 13.4 does not apply in this case (as a contract was never entered in to), it is not unreasonable to suggest that clarification of this time period in relation to 13.4 also goes some way to clarifying the terms “reasonable period” and “reasonable grace period” stated in 13.1 and 13.2 respectively of the BPA’s Code of Practice.
If the BPA feel “a minimum of 10 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate (and read) terms and conditions, decide not to enter into a contract and then leave the car park.
It is therefore argued that the duration of visit in question (which parking eye claim was only 6 minutes 21 seconds) is well under the recommended grace period. Just to:
• Locate a sign containing the terms and conditions.
• Read the full terms and
• Decipher the confusing information being such as park in the marked bays.
• Decide to park and find a ‘marked bay’ therefore entering into a contract, or
• Refuse to enter into the contract, return to car and safely leave the car park

2. 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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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 Code of Practice) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
Paragraph 7 of the BPA Code of Practice 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.

3. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance The BPA Code of Practice point 20.5a stipulates that:
"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."
The PCN in question contains two close-up images of the vehicle number plate. Neither of these images contains a date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).
The time and date stamp have been inserted into the letter underneath (but not part of) the images. The images have also been cropped to only display the number plate. As these are not the original images, I require Parking Eye to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

4. No legally binding contract between an The ParkingEye Ltd. and the driver of this vehicle
In addition, the BPA Code of Practice (18.1) clearly states that:
“A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.”
Bearing this paragraph in mind, there was categorically no contract established between the driver and Parking Eye. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated.
Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.
When the driver arrived at the car park the sign was difficult to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located (due to the low positioning of the sign as shown in Photo 5), invisible after dark (not lit, too far away to be lit by virtue of reflecting any vehicle headlights, particularly from a moving vehicle entering the car park from the road), and the terms and conditions illegible. As a result, the driver did not have a fair time and grace period to read about any of the terms and conditions involving this charge before deciding to stay in the car park and then leave safely.
Photo: Southend Airport Retail Park Service Yard car park

I trust you will also take the following matters into account in your deliberations:
1. Parking Eye has failed to provide copies of the signs at the location that day, nor have they provided evidence of any damages the driver caused by entering the car park during the period in question (6 minutes and 21 seconds) that might otherwise justify a Parking Charge of £100 (or the £60, reduced charge for prompt payment).
2. I fully accept that landowners have right to prevent trespass onto their land and to levy a charge commensurate with the infringement, providing fair notice is given. The driver and I are of the opinion however that, if ParkingEye Ltd genuinely wanted to prevent unauthorised access to their land, there is so much more they could have done to improve compliance and make them fit for purpose at this particular location. For example:
• make the signs at the entrance to the car park larger and simpler to understand at a glance eg. “No entry for unauthorised vehicles”, “No access for airport drop-off / pick up”, “Enforcement cameras in operation”, etc;
• make the signs inside the car park less inconspicuous by making them larger, allowing for larger / legible print, placing them at head height in places and at angles where they can be more clearly seen by approaching motorists especially when sitting in a car, etc.
• ensure signage has fluorescent backgrounds, and / or illuminating the signs so they can be seen from anywhere in the in the car park after dark - the latter being a major obstacle to the driver being given reasonable notice4 and understanding the restrictions.
All of these improvements could be affected with minimal cost and are entirely affordable for an organisation such as this given the revenue yield from this site I suspect. A cynic might conclude, therefore that those reasonable steps have not been taken by ParkingEye Ltd. because it is not actually interested in preventing airport users from entering this site. On the contrary, they seem to be operating this car park as a rather lucrative “honey-trap” for unsuspecting motorists, which I believe most people would consider an unethical, unfair and an inequitable way of conducting a business in the modern age. In that regard, I will also be pursuing a complaint to the Competition and Markets Authority to ensure wider “consumer” protection is secured at this site, if that is possible (subject to the further legal advice I will be seeking).
3. ParkingEye Ltd has asserted in its letter dated 13 August 2019 that it “had reasonable cause to request the Registered Keeper’s “details from the DVLA following a breach of the terms and conditions of parking in operation on site.” This is a matter which the driver / I am contesting, since I believe the terms and conditions of contract as displayed on the signage cannot be relied upon and are therefore non-compliant with the requirements of the General Data Protection Regulation (GDPR) (EU) 2016/679. Further legal advice on this matter is being sought and the outcome is not yet known at time of submission of this appeal. If legal opinion suggests that ParkingEye Ltd is in breach of GDPR, I will also be pursuing a complaint to my MP and / or the Driver and Vehicle Licensing Agency.
4. Time spent to defend the driver to this point amounts to 40 hours. Whilst most would argue that this is disproportionate to the £100 / £60 Parking Charge that ParkingEye Ltd is claiming, and so not financially worth me defending, there is a point of principle here that is in the public interest to resolve, in order to prevent the alleged ongoing exploitative practice of this organisation.
Submitted for your consideration, with my thanks for your attention to this matter.

Yours faithfully,

IamWood

PE Evidence:

Rules and Conditions

This site is for Permit holders & service vehicles only car park as clearly stated on the signage (enclosed). 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.

Evidence G

System generated results page confirming that no permit was registered on the date of event.

Please find enclosed a letter of authority (LOA) signed on behalf of the landowner showing that on the date of the parking event ParkingEye had authority to issue and pursue a Parking Charge to this vehicle.

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.

Grace Period

Clause 13.2 of the BPA code of practice states ’…you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken’. ParkingEye can confirm a grace period is given to all motorists before a Parking Charge is issued.

In relation to clause 13.4, which states: ‘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’, this does not mean that a second grace period must be given. The BPA has confirmed that only one grace period ought to be applied per a motorist’s stay onsite.

Further Information

ParkingEye ensures that all its signage is clear, ample, and in keeping with the British Parking Association (BPA) regulations.

The signage on site clearly sets out the terms and conditions and states that;

"By parking, waiting or otherwise remaining within this private car park, you agree to comply with these terms and conditions and are authorised to park, only if you follow these terms and conditions"
"If you fail to comply, you accept liability to pay the fee for unauthorised parking"

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.

ParkingEye operates a grace period 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. These grace periods are sufficient for this purpose and are fully compliant with the BPA code of practice.

Initially, ParkingEye would like to state that we are a leading user of ANPR Technology. We ensure that our cameras, technology and processes are of the highest quality, and have built up this expertise with almost 10 years of experience of using ANPR cameras. We ensure that we use the best cameras, and that these are expertly configured.

We have also developed a robust process for handling the data and ensuring the accuracy of the system.
ParkingEye is regularly required to provide data taken from these ANPR cameras for Police investigations. Once ParkingEye has installed the cameras, signage and other technology at a site, we will test the system extensively before Parking Charges are issued on site. This involves allowing the site to function normally without Parking Charges being issued, to ensure that the system is functioning correctly.

The British Parking Association Code of Practice contains guidelines for the use of ANPR cameras at Section 21. We comply fully with this;

21.1 – You may use ANPR camera technology to manage, control and enforce paring 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

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. The process that you use to manage your ANPR system may be audited by our compliance team or our agents.

21.4 – It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the information commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the information Commissioner’s Office on the use of CCTV and ANPR
cameras, and on keeping and sharing personal data such as vehicle registration marks.

21.5 – We have an expectation that when Operators are using cameras to manage parking, they will sign up to the Surveillance Camera Commissioners Code of Practice and adopt the Guiding Principles which are detailed in appendix F of the Code. We have passed both our British Parking Association and DVLA audits and follow all DVLA requirements concerning the data that we obtain.

Images recorded by the ANPR (Automatic Number Plate Recognition) systems are time-stamped at source. The ANPR servers use NTP to regularly verify the accuracy of the local time clock with any adjustments being logged thus ensuring that all images are captured and stamped with an accurate time and date. Network Time Protocol (NTP) is a widely used standard to accurately synchronise computer time over wide area networks.. We firmly believe that these time-stamped images are accurate.

Any time deviance detected on the ANPR servers generates an automatic alert monitored by the Technical Support Team at ParkingEye Head Office. If at any stage of the process the ANPR cameras are found to be deviating, Parking Charges are not issued. There are automated and manual checks to ensure that the cameras are accurate.

It is important to note that cameras and ANPR servers are directly attached as an integrated solution situated on-site therefore ensuring the accuracy of the ANPR read and associated date-timestamp. Transactional data and images are recorded locally before batch transfer to our central systems.

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.

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”.

Lord Hodge states that, “…local authority practice, the BPA guidance, and also the evidence that it is common practice in the United Kingdom to allow motorists to stay for two hours in such private car parks and then to impose a charge of £85, support the view that such a charge was not manifestly excessive […] the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable.”

ParkingEye submits that the Judgment provides clarity and delivers a binding precedent to support the position that our Parking Charges are fair, reasonable and legally enforceable.

Please be advised the date of the Parking Event was 08/08/2019 and the Parking Charge Notice was issued on 13/08/2019, therefore we believe that we have issued the Parking Charge Notice in accordance with Paragraph 9 of Schedule 4 of the Protection of Freedoms Act (2012).

Please note that the Letter of Authority provided to demonstrate ParkingEye’s authority to operate at this site and issue Parking Charges is effective from 13/06/2016, as the date the Letter of Authority was signed. It should also be noted that it is widely accepted as a standard industry practice and in the County Court that the date of signature of any such agreements is the effective date from which the agreement commences and the authority is given.

IamWood

Obviously PE did not mention '10 minutes' grace period at all. Is there anything else I can comment on?

Any help would be really appreciated!

Thank you.

IamWood

I have drafted the following comments.

Do they make sense? Any advice would be really appreciated!

Thanks

---

1. Grace Period. ParkingEye failed to comply to The BPA’s Code of Practice (13) although ParkingEye claimed “a grace period is given to all motorists before a parking Charge is issued” in the evidence pack. The BPA’s Code of Practice (13) states that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start. The duration of the visit in question claimed by ParkingEye was only 6 minutes 21 seconds, which is well under the recommended grace period.


2. ParkingEye failed to provide evidence to confirm the vehicle images contained in PCN to comply to the BPA Code of Practice point 20.5a

3. The signs are difficult to read even when provided with photographs, let alone understand the terms and conditions being imposed.

4. Parking Eye has failed to provide copies of the signs at the location that day (08/08/2019), nor have they provided evidence of any damages the driver caused by entering the car park during the period in question (only 6 minutes and 21 seconds) that might otherwise justify a Parking Charge of £100 (or the £60, reduced charge for prompt payment).

Coupon-mad

You had no replies as this is a duplicate thread which we just cannot handle. We have no time to flit between two as this forum is far to busy to do it like this.

Please post your intended reply here in your actual thread as this is where the context is:

https://forums.moneysavingexpert.com/discussion/comment/76269565#Comment_76269565

For instance I think in that thread you told us you had blown it and admitted to driving early doors, despite this being an Airport site. We cannot have known this from this new thread, and it causes us too much wasted time and we will either repeat advice, or make assumptions & errors if we try to base our answers on what you've shown us here alone.

KeithP

But C-m, that other thread is about VCS.

Same airport - a different incident?

Coupon-mad

OMG really? Skim reading late at night again...!

Is there no thread about this one, IamWood?! if not, at least I bumped your thread that was in the doldrums with you talking to yourself before now!

Did you blow it and admit to PE you were driving in this first appeal, too?

IamWood

KeithP wrote: »

But C-m, that other thread is about VCS.

Same airport - a different incident?

Yes unfortunately. Was scammed by both the airport and ParkingEye on the same day

IamWood

Coupon-mad wrote: »

OMG really? Skim reading late at night again...!

Is there no thread about this one, IamWood?! if not, at least I bumped your thread that was in the doldrums with you talking to yourself before now!

Did you blow it and admit to PE you were driving in this first appeal, too?

No I didn't. I appealed in the name of the vehicle keeper as advised here.

Any help on the comment would be appreciated. It's my first time to get a PCN -- Unfortunately two PCNs on the same day in just a few of mins

nosferatu1001

So despite it being an AIRPORt site, and therefore byelaws would apply, you didnt raise "not relevant land", whcih was the REASON for not blabbing about the driver?