ParkingEye POPLA - 20 minute stay

Lekan21

HI Umkomaas,

Apologies for the delay, I have amended the the last section of the Grace Period (point 3) to:

It is therefore argued that the duration of the visit in question (which ParkingEye claim was 33 minutes) is not an unreasonable grace period given:

1. That the Car entered the car park at 17.43.33 on 28/08/2019

2. It took at least 8 minutes to locate a sign containing the terms and conditions, read the full terms and conditions, decipher the confusing information being presented, find a suitable place to park (Grace period before parking as per BPA’s Code of Practice (13.2), reasonably suggested to be the same 10 minute grace period as per BPA’s Code of Practice (13.4)).

3. Upon deciding to stay the period of parking contractually commenced and the car was then parked for 20 minutes.

4. It took at least 5 minutes pack the car with shopping, set the satnav and safely leave the car park at 18.16.31 on 28/08/2019 (Grace period after parking (10 minutes grace period as per BPA’s Code of Practice (13.4)).

DO you think this is sufficient, or do I need to go into more detail?

KeithP

I would respectfully suggest that loading the car and setting the satnav are not activities that a grace period is designed for.

The driver needs to do that stuff within the allotted parking time.

Umkomaas

KeithP wrote: »

I would respectfully suggest that loading the car and setting the satnav are not activities that a grace period is designed for.

The driver needs to do that stuff within the allotted parking time.

I agree with KeithP - none of 4 is relevant. It needs to describe the exit from the car park (ie after jumping into the car, starting the engine and moving out of the bay - then start your stopwatch!).

Coupon-mad

It took at least 8 minutes to locate a sign containing the terms and conditions, read the full terms and conditions, decipher the confusing information being presented, find a suitable place to park

Other way round surely?

Talk about how busy it was pedestrians and cars manoeuvring, how narrow the internal roadways between run of bays are, trolleys in the way if it's a retail park, children congregating around as it was the weekend (if true). Make it up!

Lekan21

KeithP, Umkomaas and Coupon-mad - Thank you for the advice

Amended to the below, amended both point 2 and 4.

2. It took at least 9 minutes to find a suitable place to park, locate a sign containing the terms and conditions, read the full terms & conditions and decipher the confusing information being presented (Grace period before parking as per BPA’s Code of Practice (13.2), reasonably suggested to be the same 10 minute grace period as per BPA’s Code of Practice (13.4)).

4. It took at least 4 minutes to manoeuvre out of the narrow parking bay, avoid pedestrians and other vehicles and safely leave the car park at 18.16.31 on 28/08/2019 (Grace period after parking (10 minutes grace period as per BPA’s Code of Practice (13.4)).

If the above is now ok, is there anything else I should add to my appeal or shall i just send it off now?

Umkomaas

(Grace period after parking (10 minutes grace period as per BPA’s Code of Practice (13.4)).

Just adjust to:

(Grace period to leave the car park (an absolute minimum of 10 (ten) minutes' grace period as mandated by the BPA's Code of Practice (13.4)).

Then quote that paragraph so the assessor is in no doubt about what it says.

13.4 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.

happyandcontented

Is it possible that these car parks have CCTV and so can refute assertions that it was busy, full of kids etc?

Umkomaas

happyandcontented wrote: »

Is it possible that these car parks have CCTV and so can refute assertions that it was busy, full of kids etc?

They might be CCTV, but it's highly unlikely to belong to the PPC. AFAIAA, they won't be able to have access to a third party's CCTV without being in breach of GDPR regs.

Lekan21

Thanks happyandcontended and Umkomaas

In regards to the CCTV, I don't believe there is any (google map check) but even if there is, they have to beat every single point to win, not just one?

Here is the final appeal based on all of the above advice

Appeal re POPLA Code: XXXXXX v ParkingEye

Vehicle Registration:XXXXXX
POPLA ref: XXXXXX
ParkingEye Ref: XXXXX

I, the registered keeper of this vehicle, received a letter dated [Insert Date] acting as a notice
to the registered keeper. My appeal to the operator – ParkingEye – was
submitted and acknowledged on [Insert Date] but subsequently rejected by a letter dated
[Insert Date]. 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

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

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



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. 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’sCode 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.”

Finally, some 4 years ago, on 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes':

“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

The recommendation reads:

“Reword Clause 13.4 to ‘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 11 minutes.”

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This shows that the intention of stating vaguely: 'a minimum of ten minutes' in the current BPA CoP (not a maximum - a minimum requirement) means to any reasonable interpretation that seconds are de minimis and therefore not taken 3 into account – certainly an allegation of under eleven minutes (as is the case here) is perfectly reasonable.

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 11 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 whether or not to enter into a contract and then leave the car park.

It is therefore argued that the duration of the visit in question (which ParkingEye claim was 33 minutes) is not an unreasonable grace period given:

That the Car entered the car park at 17.43.33 on 28/08/2019

It took at least 9 minutes to find a suitable place to park, locate a sign containing the terms and conditions, read the full terms and conditions, decipher the confusing information being presented (Grace period before parking as per BPA’s Code of Practice (13.2), reasonably suggested to be the same 10 (ten) minute grace period as per BPA’s Code of Practice (13.4)).

Upon deciding to stay the period of parking contractually commenced and the car was then parked for 20 minutes.

It took at least 4 minutes to manoeuvre out of the narrow parking pay, avoid pedestrians and other vehicles and safely leave the car park at 18.16.31 on 28/08/2019 (Grace period after parking (Grace period to leave the car park (an absolute minimum of 10 (ten) minutes' grace period as mandated by the BPA's Code of Practice (13.4)).

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.”





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 - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

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:

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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.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

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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. 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.

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.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

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As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

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''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.''

...and the same chart is reproduced here:

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''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a '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.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

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This was a victory for the motorist and found that, 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. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

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 a 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

Coupon-mad

2. It took at least 9 minutes to find a suitable place to park, locate a sign containing the terms and conditions, read the full terms & conditions and decipher the confusing information being presented (Grace period before parking as per BPA’s Code of Practice (13.2), reasonably suggested to be the same 10 minute grace period as per BPA’s Code of Practice (13.4)).

The above says nothing to me about why.

Look at my sentence starting 'talk about...'.

Also, how can there be a 20 in max stay car park? Is this a Hospital drop off bay within a huge NHS site?

If so, it opens up more arguments about where the ANPR images were actually taken.

If not, where on earth is it that only allows 20 mins?