Unfair Parking Charge Notice - Appeal Denied

deejbk01

Here is my POPLA appeal:

Tried to post as plain text, but could not post in the forumas it was over 25000 characters:

https://drive.google.com/file/d/1AuVk3lcla_hYxlhxWDjX1YmGv7dcJSry/view?usp=sharing

Any feedback would be apreciated

Fruitcake

deejbk01 wrote: »

thanks Le_Kirk, I've emailed them too

Redx, is it really 32 days?

According to https://popla.co.uk/faqs-and-advice

How much time do I have to submit my appeal?
We must receive your appeal within 28 days from the date of the operator’s notice of rejection. The date the operator sent the rejection to you will be on the appeal form.

The appeal rejection was dated 29th November, so I calculate that 27th December is my last chance to submit POPLA appeal

Hopefully (but unlikely I fear) ALDI will get back to me before 27th Dec, but wither way, I'm writing up a POPLA appeal

PoPLA codes last at least 32 days, but you can believe the outfit that are paid by the scammers if you prefer.

Never bother with customer dis-services. Always, always complain to the store manager and/or the CEO; nobody lower.
Include copies of the receipt or card statement. Show additional receipts/card payments to show the motorist is a regular customer.

Fruitcake

deejbk01 wrote: »

Here is my POPLA appeal:

Tried to post as plain text, but could not post in the forumas it was over 25000 characters:

https://drive.google.com/file/d/1AuVk3lcla_hYxlhxWDjX1YmGv7dcJSry/view?usp=sharing

Any feedback would be apreciated

You can split the appeal over two or more posts.

Do you have any more images showing how far away the signs are from where the car was parked, any that are damaged or obscured by foliage etcetera?

deejbk01

Sorry I'm new to this, I didn't think of that:


1/2




Dear POPLA,





On the DATE, ParkingEye Ltd. issued a parking charge to myself (as keeper of the vehicle) highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “remaining at the car park longer than the stay authorised”. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.





As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:


1. The entrance signs are inadequately positioned and lit and 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
2. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3. Grace Period: BPA Code of Practice– non-compliance
4. No Evidence of Period Parked – NtK does not meet PoFA2012 requirements
5. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance
6. The ANPR System is Neither Reliable nor Accurate
7. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for


Please see below for details


1) The entrance signs are inadequately positioned and lit and 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


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:


http://imgur.com/a/AkMCN


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.


Figure 1 below shows the 'Beavis case' sign as a comparison to the signs under dispute in this case:


[IMG]file:///C:/Users/DANIEL~1/AppData/Local/Temp/msohtmlclip1/01/clip_image002.png[/IMG]





Figure 1: Beavis sign


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:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''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:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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.


[IMG]file:///C:/Users/DANIEL~1/AppData/Local/Temp/msohtmlclip1/01/clip_image004.jpg[/IMG]





Signage is not clear when entering premises from Brighton Road South





[IMG]file:///C:/Users/DANIEL~1/AppData/Local/Temp/msohtmlclip1/01/clip_image006.jpg[/IMG]





Signage in Car park is too small and therefore is not clear








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, 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).


Section 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) 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.”

[Embed Link]

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 1 hour 51 minutes) is not an unreasonable grace period given:

That the Car entered the car park at 10.44.56 on 29/10/2019

It took at least 10 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 90 minutes.

It took at least 11 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.”







4) No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements


Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.


Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to:


“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”


ParkingEye’ NtK simply claims “the vehicle was parked at [enter location].”


The NtK separately states that the vehicle “entered [location] at [entry time] and departed at [exit time]”. At no stage do ParkingEye explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.


ParkingEye NtK states “we are using cameras to capture images of vehicles entering and leaving the car park to calculate their length of stay”. It is not in the gift of ParkingEye to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.


By virtue of the nature of an ANPR system recording only entry and exit times, ParkingEye are not able to definitively state the period of parking.


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




...

deejbk01

2/2




5) 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 has 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 ParkingEye Limited 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.





6) The ANPR System is Neither Reliable nor Accurate





The ParkingEye Notice to Keeper (NtK) shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question.


The Notice to Keeper states:


“On [DATE] the vehicle: XXXXXXX entered West Dyke Road – Redcar, at [ENTRY TIME] and departed at [EXIT TIME] on [DATE].”


These times do not equate to any single evidenced period of parking. By ParkingEye own admission on their NtK, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed.


Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states;


“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”


Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order.





I require ECP to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.





As ‘grace periods’ (specifically the time taken to locate any signs, observe the signs, comprehend the terms and conditions, decide whether or not to purchase a ticket and either pay or leave) are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle number plate allegedly entering and leaving the car park at specific times (10 minutes and 48 seconds apart), it is vital that ECP produces the evidence requested in the previous paragraph.





7) The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.





The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras.


Paragraph 21.1 of the BPA Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.


ParkingEye’ signs do not comply with these requirements because these car park signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.


The ParkingEye’ main sign in the West Dyke Road car park (see Figure 2) states:


“We are using cameras to capture images of vehicle number plates and calculate the length of stay between entry and exit at all times including bank holidays.”


Specifically missing from this sentence is the vital information that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices. The only reference to Parking Charge Notices on ParkingEye’ sign makes no mention of Parking Charge Notices being issued as a result of images captured by the ANPR cameras and instead merely states (see Figure 2):


“This car park is controlled, failure to comply with the following will result in the issue of a £70 Parking Charge Notice (£40 if paid within 14 days of issue).”


In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.


This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:


(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.


(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.


and Paragraph 69:


Contract terms that may have different meanings:


(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.





Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 because the operator 'fails to identify its commercial intent':


http://www.legislation.gov.uk/uksi/2008/1277/contents/made


Misleading omissions: 6. - (1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2) -


(a) the commercial practice omits material information,


(b) the commercial practice hides material information,


(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or


(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''





It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.


I sincerely hope you are able to help me.

deejbk01

I could not see any that were damaged at all. None were obstructed by foliage as they were quite high up. The car was parked about 2 bays from the nearest sign which were placed sporadically around the car park. This image shows the row where the car was parked in the bay one from the end, and the nearest sign

https://www.dropbox.com/s/516sw0niyy48lyy/car%20park.png?dl=0

Umkomaas

Your formatting and random font suggest you might be copying and pasting direct from MSWord? If so, you risk an IP address ban by MSE Towers. Please read the following:

https://forums.moneysavingexpert.com/discussion/5706338/please-dont-copy-and-paste-from-word-outlook

deejbk01

Ah, thanks for letting me.

Please can someone advise me whether I should go through POPLA appeal using the letter above, or if use I should wait for aldi to get back to me?

I'm currently on day 25 since my parkingeye appeal got rejected

1505grandad

Why is another ppc mentioned:-

"I require ECP to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.

KeithP

deejbk01 wrote: »

I'm currently on day 25 since my parkingeye appeal got rejected

You have over thirty days to submit a PoPLA appeal.
Bump this thread again on Friday if no-one has commented by then.

Do not delay your PoPLA appeal because you are waiting for Aldi.