ParkingEye PCN fightback

Snath

Hi,

My friend and I got PCNs (2 separate cars) from ParkingEye as we were 3 seconds late (10 minutes and 3 seconds in total) getting out of a car park where we made a temporary stop over. We used the FAQ thread and sent the standard email template as an initial challenge.

My challenge was rejected and I received the popla code and told to challenge while my friend did not get any response for months. He now has received an LBC, so here are my questions to the group for help:

A. For my POPLA appeal, would it suffice if I just used the no reasonable grace period allowed challenge? The PCN was received when we went on holiday, so the signs etc. is not easily accessible to review, so not sure if I should add other points without knowing.
B. For my friend, should he just write back to ParkingEye saying he has not recieved the popla code or should he request a SAR etc. and go down that route?

Your time is greatly appreciated.

Thanks,  

Fruitcake

What happened when you both complained to the landowner? Plan A is always the best option.

Use all the points available to you from the third post of the NEWBIES, and show us your draft PoPLA appeal before you submit it.

As for your friend, they should complain to ParkingEye and the BPA about the lack of PoPLA code.

Also you should both complain to your MP, and do please both comment on the government consultation regarding the levels of parking charges.

Snath

@Fruitcake - we did not complain to the landowner . Can we do it now?

Fruitcake

It is never too late to complain to the landowner.

Snath

Thanks Fruitcake.

Draft letter to ParkingEye for my friend ( his LBC came in the post, but we intend to submit this online). Any feedback welcome!

----------------------
I wrote to you regarding the matter of the above PCN on the XXXXX. After receiving the PCN I followed your appeals procedure by sending an email to the outlined address, with the information requested contained. I then received an email response on the XXXXX stating my appeal had been received and that I would receive a response within 28 days. No response was given, nor was a POPLA code supplied. I just received a "letter before county court claim"  on XXXX stating that I should pay or I may be taken to court.

In addition, I also do not appreciate contents in the letter which encourages me to view online content outlining court cases where all these people have lost to ParkingEye through Court; that template might have been interesting if it had not already been in the public domain several times over. Clearly this is mere bluster - a standard, unhelpful, and frankly misleading response which does nothing to address my appeals claims.

From your recent template letter, it is clear that you have clearly not followed the correct appeals procedure by not responding to my appeal, and in addition, no POPLA code has been supplied.

I would suggest that this matter is resolved using POPLA, to save your wasted costs and the court's precious time. If we use POPLA, as you are aware your costs will be a mere tax-deductible £27. If you use the court, then you will incur further costs, including £15 filing fee, £25 hearing fee, and approximately £250 as costs payable for your legal representative.

Failure to agree to my offer of both parties abiding by a POPLA decision would be evidence of ParkingEye failing to mitigate your alleged loss which I will draw to the court's attention along with your unreasonable behaviour, and inability to follow the correct appeals procedure.

If you reject this resolution and proceed to court I will robustly oppose any costs over £27 and will in my first defence statement, ask the court to stay the case and insist on a POPLA decision instead. I am aware that in many cases in the public domain, ParkingEye has issued POPLA codes much later than your self-imposed 28 days guideline and indeed POPLA have confirmed that a code can be issued by the operator at any time. The 28 days is merely a time limit that starts when the code is generated and sent to the motorist and I will state this fact to the court if ParkingEye suggest otherwise.

Please do not send me a generic template letter which does not address my points or does not address the points made in my original appeal email.

I look forward to hearing from you within 14 days with either:

- a rejection along with a POPLA code, or

- confirmation that this matter is not proceeding and the charge is cancelled.

yours,
Registered Keeper

KeithP

Failure to agree to my offer of both parties abiding by a POPLA decision ...

Do you really want to put that in writing?

Without that statement, any PoPLA decision is not binding on the motorist and after a PoPLA rejection you would ordinarily get an opportunity to defend yourself in court. You appear to be throwing away that option.

Snath

thanks @KeithP, makes sense, will take that out

Snath

My POPLA appeal (1 of 2) draft review. Appreciate any comments - thanks!

POPLA Verification Code: XXXX

Vehicle Registration: XXXX

I, the registered keeper of this vehicle, received a letter dated 2 June 2021 acting as a notice to the registered keeper for overstaying at the Pleasure Land, Morecambe by 3 seconds.

My appeal to the Operator – ParkingEye – was submitted and acknowledged by the Operator and rejected via a letter dated 9 Aug 2021.

As the keeper of this vehicle I contend that I 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. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements.

3. Vehicle Images contained in PCN: BPA Code of Practice – non- compliance.

4. The ANPR System is Neither Reliable nor Accurate.

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

6. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.

7. 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

BPA’s Code of Practice (13.1) states that:

“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.”

BPA’s Code of Practice (A8.4) states that:

“If a driver is parking with your permission, they must have the opportunity 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.”

BPA’s Code of Practice (13.3) states that:

“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.”

The BPA Code of Practice (13.3) 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 13.3 is also a “reasonable grace period” to apply to 13.1 and A8.4 of the BPA’s Code of Practice.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):

“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket. No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

Finally, the minutes of the Professional Development & Standards Board meeting of 30/07/2015 show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 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.”

SOURCE LINK REMOVED FOR POSTING

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 into account.

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

It is therefore argued that ParkingEye have FAILED to adhere to the BPA Code of Practise in that the duration of the alleged overstay in question (which ParkingEye claim was 10 minutes and 3 seconds) is not an unreasonable grace period, given:

a) The ANPR records the “arrival time” at the point when the vehicle is alleged to be entering the car park and does not show if the car park is busy. While waiting for others to park this would reasonably cause the driver to spend several minutes finding a suitable parking space before parking the car, locating the signs, reading and attempting to understand them, checking the payment methods that can be used, ensuring correct coins and obtaining a ticket – hence the need for a reasonable grace period to be also applied at the START of parking.

b) The time record created by the ANPR at the “departure time” is allegedly at the exit. It does not therefore give any reasonable allowance for time taken to exit the parking space and reach the exit. This is clearly a variable that depends on other activity within the car park (people parking or queueing at the exit). Nor does it clearly show nor make allowance for how long it takes to exit onto the road should there be cars and pedestrians passing the exit. The system clearly makes no reasonable allowance for this and therefore no grace period has been allowed.

d) There is no clearly visible sign at the entrance to the car park advising drivers that ANPR is in operation

e) The lengthiness of ParkingEye’ signage (in terms of word count) with a significant amount of text included in a “conditions” section in tiny text at the bottom of the sign would in itself take many minutes to decipher given the height at which they are placed and the miniature size of a significant proportion of the text.

All factors discussed above serve merely to increase the time taken to: 

• Locate a sign containing the terms and conditions. 

• Read the full terms and conditions. 

• Decipher the confusing information being presented 

• Decide whether to park or not

• Return to the car to obtain correct coinage and return to obtain a ticket and later to safely leave the car park.

Even with no mitigating circumstances the alleged overstay is within the revised grace period agreed by the BPA to be allowed at the END of parking. Taking into account that there is also a reasonable expectation of a similar grace period at the START of parking then clearly the vehicle can not be shown to have been “parked” for longer than permitted.

2. 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.

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;”

ParkingEyes’ NtK simply claims that the vehicle “entered Pleasureland Car Park at 16:50:39 and departed at 17:00:42”. The NtK states the “Time in Car Park” but at no stage do ParkingEye explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.

ParkingEye’s NtK states “are clearly using ANPR images to calculate the length of stay”. It is not in the gift of Parking Eye to substitute “arrival and departure” or “time in car park” 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.

3 Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

The BPA Code of Practice point 21.5a 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 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 images have also been cropped to only display the number plate (digitally altered).

I require ParkingEye Limited to produce evidence to demonstrate where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

4 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 29 May 2021 vehicle XXXX entered the Pleasure Land,  Morecambe Car Park at 16:50:39 and departed at 17:00:42 on 29 May 2021”. These times do not equate to any single evidenced period of parking.

By ParkingEye’s own admission on their NtK, these times are claimed to be the arrival and departure 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 22.3 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 ParkingEye 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 3 seconds apart), it is vital that ParkingEye produces the evidence requested in the previous paragraph.

Snath

(2 of 2)

5. 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 30.1 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’s signs do not comply with these requirements because the 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.

ParkingEyes’ main sign in the Pleasure Land Morecambe car park states:

“When you use this car park, ParkingEye Ltd collects and processes certain data in order to ensure that you are complying with the terms and conditions and to undergo checks where necessary. We also use the data for car park management. This will include for example reporting on vehicle turnover and repeat visits in order to improve the customer experience

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.

There is no reference whatsoever to Parking Charge Notices on ParkingEye’s sign; the only IMPLIED reference (to Parking Charges) makes no mention of Parking Charge Notices being issued as a result of images captured by the ANPR cameras.

Additionally the sign states:

“Failure to comply with the terms and conditions will result in a Parking Charge of £100.” and “If a parking charge becomes due, a reduced payment option will be available for a specified period from 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':

SOURCE LINK REMOVED FOR POSTING

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. A camera icon suggests CCTV is in operation for security within the car park.

6 The operator has not shown that the individual who it is pursuing is in fact the driver who was 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 and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the keeper throughout (as I am entitled to be), and 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.

As the keeper of the vehicle, it is my right 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 I am only appealing as the keeper and 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) I have personally not complied with terms in place on the land and show that I am personally 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 myself as 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.''

7 No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA Code of Practice) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:

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

7.3 The written authorisation must also set out:

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

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

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

d. who has the responsibility for putting up and maintaining signs e. the definition of the services provided by each party to the agreement.

Coupon-mad

Obviously you will be wanting their evidence that the in and out cameras were a synchronised to the nth degree if they reckon they can time it down to seconds...

Le_Kirk

Snath said:

Thanks Fruitcake.

Draft letter to ParkingEye for my friend ( his LBC came in the post, but we intend to submit this online). Any feedback welcome!

I wrote to you regarding the matter .......................

I would suggest that this matter is resolved using POPLA, to save your wasted costs and the court's precious time. If we use POPLA, as you are aware your costs will be a mere tax-deductible £27. If you use the court, then you will incur further costs, including £15 filing fee, £25 hearing fee, and approximately £250 as costs payable for your legal representative.

Check the fees, I think it is more (certainly the filing fee is £25)  Also, I think ParkingEye have their own in-house solicitor team so won't be incurring extra costs there; however, you could point out that you/your friend will be claiming maximum costs WHEN you/your friend win!