ParkingEye Manchester Royal Infirmary

Poseidondevil

So as expected PE have rejected my appeal on the grounds that insufficient evidence was provided. PALS have been no help whatsoever (expected nothing more from them tbh). Now with my POPLA appeal since its a golden ticket, should I include the letter that they sent to (highlighting that no POFA 12 mentioned nor was I ever served a NTK?)
Also in my appeal to PE my grounds to them were that the bays werent marked properly and there are many empty areas within the car parking lot, is that something I should add to my appeal to POPLA?
thanks in advance

Poseidondevil

Something else just came to mind now, would PE be privy to communications (emails) that were sent to PALS when I initially appealed to PALS? just asking to see if they could use that to identify the driver?

Redx

They could be breaking GDPR DPA if they share your complaints , especially if you forbade them from doing so

Complain to the trust in writing , plus get your local MP involved , regardless

Get the government surveys filled in ASAP too , only a few days left

The PE letters will be in their evidence pack to Popla , so just add the relevant words to your Popla appeal , so they can look for them in the PE evidence pack

Signage is crucial and is ALWAYS added to a popla appeal , be it signs , markings , whatever , no need to ask because it's essential , as is no landowner authority , POFA , the CRA and the BPA CoP , where appropriate

Ditto if they failed POFA and did not identify the driver

If it's a hire , lease or company vehicle , then they usually fail to comply with POFA anyway

Poseidondevil

Could someone have a look at my POPLA appeal and tell me if its good to go? 

I write to make my formal appeal in respect of the above detailed Parking Charge Notice issued by ParkingEye Ltd in respect of an alleged breach of Parking Terms and Conditions at Manchester Royal Infirmary on 3rd August 2020. 

I contend that I am not liable for this parking charge on the basis of the below points:

1. The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5) and is not POFA 2012 compliant 

2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

3. No evidence of Landowner Authority

4. Unclear and Inadequate Signage and inadequate markings

1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) 

due to the wording used.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met as stated in paragraphs 5, 6, 11 & 12. ParkingEye have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 8 , which stipulates a mandatory timeline and wording:-

’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’

The applicable section here is (b) because the NTK was delivered by post. The first and only letter received by the registered keeper has been considered as the NTK, however the so called NTK had confusing and conflicting statements, it states “ We originally wrote to the registered keeper of the vehicle whose details were held by the DVLA at the time of the parking event and they have informed us that you were responsible for this vehicle at the time of the parking event” This statement is untrue since I am the registered keeper of the vehicle and the first owner/registered keeper of the car. The wording on this letter seem to indicate that the car is either a hire/lease or has been registered to another person which it has never been. If this letter is not considered as the NTK then it is mandated that the relevant NTK was not served within the relevant period.

The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 8 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 8 (2) (f) highlights a NTK much adhere to the following points:

The notice must be given by—

warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii) the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Upon reviewing the NTK, ParkingEye Ltd have omitted any mention of the conditions as outlined in sub-paragraph 8 (2) (f). The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

2) The operator has not shown that the individual who it is pursuing is in fact the driver who may

have been potentially liable for the charge 

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first

consider whether they are confident that the Assessor knows who the driver is, based on the

evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven

by any person (with the consent of the owner) as long as the driver is insured. There is no dispute

that the driver was entitled to drive the car but the right not to name that person is being exercised.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no

admission regarding who was driving, and no evidence has been produced, it has been held by

POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a

valid NTK.

It is the right of the legal keeper of the vehicle to choose not to name the driver, yet still not be

lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless

of when the first appeal was made and regardless of whether a purported 'NTK' was served or not,

because the fact remains that ONLY Schedule 4 of the POFA (or evidence of who was driving) can

cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) who has personally not

complied with terms in place on the land and show that that person is liable for their parking charge.

They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert

barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability

'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are

strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the

vehicle.

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver.

Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice

issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted

that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution 

where details of the driver of a vehicle must be supplied when requested by the police, pursuant to

Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to

name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not

generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from the keeper of the vehicle,

where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA

Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the

Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver

responsible. As such, I must first consider whether I am confident that I know who the driver is, based

on the evidence received. After considering the evidence, I am unable to confirm that the appellant is

in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to

demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the

appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant.

Accordingly, I must allow this appeal.''

Poseidondevil

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

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details 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 CoP) 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 CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d) who has the responsibility for putting up and maintaining signs

e) the definition of the services provided by each party to the agreement

4) The signs in this car park are not prominent, clear or legible from all parking spaces and there inadequate or impromper bay markings throughout the parking lot

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case. 

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges. 

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

 

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:

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

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

https://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:

https://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.

In addition, it is mandated in the BPA CoP that the operator displays the BPA and AOS on all sites. Section 28.6 of the CoP states:

“You should display the BPA and AOS logos on all sites. This will help the public to see that you are a legitimate operator, and show that the site is run properly.”

The driver has no recollection of seeing these logos displayed, therefore I put ParkingEye to strict proof to provide evidence of this site displaying these logos. 

Furthermore there has been evidence provided by the driver that the machines in question to pay the parking fee were not in operation.  

<photo>

Also as evidenced with the below photos it is clear that there are inadequate bay markings all over the parking site.

<photo>

evidence is confirmed from time stamped images on google maps that the bays are either worn away or inadequately marked

<photo>

Conclusion

ParkingEye have failed to comply with BPA Code of Practice on multiple accounts and I contend it is wholly unreasonable and unfair to issue this PCN for their breach on such terms.

I therefore respectfully request that my appeal is upheld and the charge is dismissed

Redx

seems ok on a skim read but try to embed the pictures, not links to pictures

KeithP

You really shouldn't be expecting the PoPLA assessor to leap all over the internet following links.

Suggest you embed what you are trying to say into the body of your appeal.

Whilst on the subject of links, at least two of yours don't show what you were hoping they would show.

Umkomaas

Whilst on the subject of links, at least two of yours don't show what you were hoping they would show.

Not those hard !!!!!! sites again? 🥴

Oh my! 🤭

Poseidondevil

KeithP said:

You really shouldn't be expecting the PoPLA assessor to leap all over the internet following links.

Suggest you embed what you are trying to say into the body of your appeal.

Whilst on the subject of links, at least two of yours don't show what you were hoping they would show.

Hi,

Yes I have embedded the pics.. ill try to correct the links if possible or I may end up removing it altogther.

but other than that im hoping its good to go?

Coupon-mad

Change 8(2)f to 9(2)f each time (POFA paragraph 8 is wrong for a postal notice).   I saw that 3 times.

And you said this: ''the relevant NTK was not served within the relevant period'' but you haven't walked POPLA through the dates, which I would do because their assessors are not good at understanding the POFA.  The NTK had to reach your house by DAY 14.  Spell out the dates to POPLA.

The rest of it is fine!