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POPLA Parkingeye - 7 minute stay as machine not working at Abbey Yard
emilycharlotte
Posts: 58 Forumite
Hi All
I have put together a draft of POPLA appeal using others' appeals in relation to a PCN recieved after a total stay in a carpark of 7 minutes. The driver saw that the payment machine was not working and decided not to stay in the carpark after reading the signs.
Any help would be really appreciated:
POPLA Ref No.xxxxxxxx
I am the registered keeper and I wish to appeal a recent parking charge from Parking Eye Ltd. The charge is levied despite the driver not being identified.
The driver entered the carpark, got out the car to read the signs and pay for their parking. The driver then noticed the payment machine was not working. The driver did not have credit on their phone to "paybyphone". The driver took photos of the payment machine as proof that the machine was out of order (attached to this appeal). Therefore the driver got back into their car and left the car park. The driver spent a total of 7 minutes in the car park.
In relation to the Beavis case, the driver here can not be considered to have 'agreed' to a parking contract like Mr Beavis did. An unfair 'out of all proportion' charge for non-parking activity is precisely the sort of charge that the Beavis case Judges made clear would fail the penalty rule which was 'plainly engaged'.
The minimum grace period was not allowed by the operator:
The vehicle entered the car park at 13:48 and left at 13:56. This is a total of 7 minutes.
British Parking Association Code of Practice 13.1 – 13.4 states:
13 Grace periods
13.1 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.
13.2 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.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
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.
The operator makes much of Beavis case. They are well aware that the circumstances of the Beavis case were entirely different, essentially that case was the abuse of a free time limited public car park where signage could be used to create a contract.
In this case, the driver entered the car park, got out of their car to read the signs, saw the ticket machine was not working and therefore chose not to park in the car park. The driver did not accept any contract and therefore could not have breached the contract as Parkingeye have claimed. The driver stayed in the car park for less than 10 minutes in total, which is less than the grace period that the driver was entitled to under 13.4 of British Parking Association Code of Practice.
Insufficient signage.
Parking Eye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park. The keeper made a special visit to the car park to ascertain the positioning and quality of the sign. The sign is positioned to the passenger side of the entrance and would only be visable to the passenger. If the driver happened to be driving a motorbike or another vehicle with an uninterrupted view then they may have been able to see the sign but quite clearly this is not the case in the images. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Also because of this visit it is noted that the sign is a forbidding one, so no contract can be made with the driver.
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 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
Also Parking Eye have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed
when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Parking Eye has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.
I have put together a draft of POPLA appeal using others' appeals in relation to a PCN recieved after a total stay in a carpark of 7 minutes. The driver saw that the payment machine was not working and decided not to stay in the carpark after reading the signs.
Any help would be really appreciated:
POPLA Ref No.xxxxxxxx
I am the registered keeper and I wish to appeal a recent parking charge from Parking Eye Ltd. The charge is levied despite the driver not being identified.
The driver entered the carpark, got out the car to read the signs and pay for their parking. The driver then noticed the payment machine was not working. The driver did not have credit on their phone to "paybyphone". The driver took photos of the payment machine as proof that the machine was out of order (attached to this appeal). Therefore the driver got back into their car and left the car park. The driver spent a total of 7 minutes in the car park.
In relation to the Beavis case, the driver here can not be considered to have 'agreed' to a parking contract like Mr Beavis did. An unfair 'out of all proportion' charge for non-parking activity is precisely the sort of charge that the Beavis case Judges made clear would fail the penalty rule which was 'plainly engaged'.
The minimum grace period was not allowed by the operator:
The vehicle entered the car park at 13:48 and left at 13:56. This is a total of 7 minutes.
British Parking Association Code of Practice 13.1 – 13.4 states:
13 Grace periods
13.1 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.
13.2 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.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
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.
The operator makes much of Beavis case. They are well aware that the circumstances of the Beavis case were entirely different, essentially that case was the abuse of a free time limited public car park where signage could be used to create a contract.
In this case, the driver entered the car park, got out of their car to read the signs, saw the ticket machine was not working and therefore chose not to park in the car park. The driver did not accept any contract and therefore could not have breached the contract as Parkingeye have claimed. The driver stayed in the car park for less than 10 minutes in total, which is less than the grace period that the driver was entitled to under 13.4 of British Parking Association Code of Practice.
Insufficient signage.
Parking Eye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park. The keeper made a special visit to the car park to ascertain the positioning and quality of the sign. The sign is positioned to the passenger side of the entrance and would only be visable to the passenger. If the driver happened to be driving a motorbike or another vehicle with an uninterrupted view then they may have been able to see the sign but quite clearly this is not the case in the images. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Also because of this visit it is noted that the sign is a forbidding one, so no contract can be made with the driver.
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 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
Also Parking Eye have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed
when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Parking Eye has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.
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Comments
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13.2 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 stillWhich version of the BPA Code of Practice are you quoting from please?
allow them a grace period to read your signs and leave before you take enforcement action.
Does the PE NtK fully comply with the Protection of Freedoms Act 2012 (Schedule 4)? Does it have a paragraph on the reverse side of the NtK referring to PoFA?Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street4 -
As above , plus can we assume it was a 2020 incident ? , Probably fairly recent ?4
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Yes the NTK has POFA paragraph. And the incident was 2020.
I took the wording from a POPLA appeal on sticky board so it might be old wording.
Shall I swap the wording for this below (from BPA COP version 7, Jan 2018):
13 Grace periods 13.1 If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking 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. 13.2 If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes. 13.2.a Vehicles are not permitted to park under the grace period in spaces designated to specific users for example Blue Badge holders. At all times vehicles must have appropriate and valid permit e.g Blue Badge on display for enforcement officer to inspect. 13.3 You must tell us the specific grace period at a site if our compliance team or our agents ask what it is. 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.
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If the parking event was in 2020, you need to use the wording from the BPA Code of Practice (revised 2020), as the grace periods were redefined - to the detriment of the motorist (who, the BPA disingenuously state, are at the 'heart of their thinking!). Have a good read of it and see if it helps you, but it doesn't help many!Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street5 -
Ahhh found it thanks!
So the new wording allows the driver a minimum period of 5 minutes to consider the T&Cs and states the amount of time will vary dependant on site size so I will change that part to the below and point out that the driver spent a total of 7 minutes pulling into the carpark, getting out the car, walking accross the carpark to the sign, reading the sign, checking the machine and noticing its not working and then walks back to the car and drives off because they do not wish to be bound by the parking contract.
Is everything other than that part ok to go?Consideration and Grace Periods
13.1 The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes.
13.2 The reference to a consideration period in 13.1 shall not apply where a parking event takes place.
13.3 Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.
13.4 Unauthorised motorists will not be entitled to the minimum time period of 5 minutes for a consideration period in spaces designated for specific users e.g Blue Badge holders, pick up/drop off or where parking is prohibited such as hatched areas in front of emergency exits, or on entry and exit ramps etc.
13.5 You must tell us the specific consideration/grace period at a site if our compliance team or our agents ask what it is.
13.6 Neither a consideration period or a grace period are periods of free parking and there is no requirement for you to offer an additional allowance on top of a consideration or grace period.
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So try to ensure the appeal accounts for the extra 2 minutes that you now know is why the PCN was issued , where it wouldn't have been under the previous CoP !!
So no spaces or driving found or delays in exiting etc , elaborate ,bore them to death3 -
The extra 2 minutes needs to be explained in MUCH more detail. Tell the Assessor exactly what the driver did when the coins failed to go in the slot, then trying to find out if there was an alternative method of payment, and that sadly the PPC had failed to meet their end of the bargain and provide a useable payment method, after which there was no choice but to go back to the car and leave, and of course the minimum 5 minutes is a minimum for this very reason.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD4 -
Many of these signs are so clogged with ridiculous T&C that it can take more than five minutes to read and understand them. IMO this may well be an unfair term in a consumer contract, Read these,
https://www.netlawman.co.uk/ia/unfair-terms-consumer-contracts#:~:text=A standard term is unfair,the requirement of good faith.&text=The principle of fairness must,a consumer contract is drawn.
https://www.legislation.gov.uk/uksi/2013/3134/made
You never know how far you can go until you go too far.2
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