PCN after long ticket purchasing process and leaving before end time

maagnuus

Good morning,

I was recently issued a Parking Charge Notice and appealed unsuccessfully to ParkingEye before learning about their scam methods. I have now read the NEWBIES thread and I feel like a fool because I told them my story which implied I was driving. Unfortunately I had a ‘golden ticket’ but it’s too late for that. I learnt the lesson now.

Anyway, I would like to share my case and get some advice on the chances for winning at POPLA stage and on what grounds to base my appeal before I waste my time. If I go ahead, I will share all the process so it can help others.

-          I was driving a rented car. I entered the Holy Trinity Church Newquay car park at 11:31:39. It was Saturday in July in Cornwall, so almost full. It took me quite some time to find a place.

-          I went to the machine without cash and realised it didn’t accept card payment but there were alternatives through PayByPhone.

-          I followed the process in the signs and tried to send the SMS to 65565 with my plate number for registration but the SMS is not sent. Not sure if it was because of poor signal on my phone or other reason as I tried to resend it one month later and it failed again. It was already 11:44h.

-          I downloaded the Paybyphone app for the first time and it took very long (poor signal again). I was finally able to make the payment at 11:55h.

-          The app only allows you to select the duration of the stay but not the specific start and end date. I selected 4h and got a ticket starting 11:55h and ending 15:55h.

-          I left the car park at 15:50:04.

-          I got the PCN 35 days later arguing that I was in the car park for 4h 18min and paid 4h.

-          In the appeal, they replied: We have reviewed the details outlined in your appeal and can see that a payment to park was made on the date of the event. Unfortunately, the tariff purchased was insufficient and did not cover the entire duration of the stay. The terms and conditions and tariffs are outlined on the signage which are on display throughout the car park.

I have been reading reviews of this car park and it’s amazing how many people have received PCN for the same reason during this summer.

Do you think I have any chance? Should I focus on technical problems or grace periods?

Thank you very much all for your amazing contribution to this forum, it’s really a great help.

D_P_Dance

PE's signs ae pants, this should be emphasised in any court hearing.  Read this and complain to your MP,

https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading/p1

Coupon-mad

Focus on the technical problems first and take a screenshot of the failed SMS (recreate it now if you have to only without a date on).  POPLA need evidence that it took that long so go to town on telling that story over several paragraphs.

You should also include the usual templates about unclear signs and no landowner authority.  

And have a paragraph alleging that this Cornwall car park, like many others, has a 20 minute grace period to allow for busy times and you put ParkingEye to strict proof to the contrary.

and have the usual paragraph about hire cars and no hirer liability.  This is NOT about a golden ticket, it’s about the failure to follow para 13 or 14 of the POFA.

Write the appeal without saying who was driving and just saying ‘the occupants of the car did this/that’ and hope the entire long appeal makes PE give up.

maagnuus

D_P_Dance said:

PE's signs ae pants, this should be emphasised in any court hearing.  Read this and complain to your MP,

https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading/p1

Thanks, will read this and of course complain to my MP.

Of course there was nothing in the signs about charges applied from the moment of entering and leaving the car park.

maagnuus

Coupon-mad said:

Focus on the technical problems first and take a screenshot of the failed SMS (recreate it now if you have to only without a date on).  POPLA need evidence that it took that long so go to town on telling that story over several paragraphs.

You should also include the usual templates about unclear signs and no landowner authority.  

And have a paragraph alleging that this Cornwall car park, like many others, has a 20 minute grace period to allow for busy times and you put ParkingEye to strict proof to the contrary.

and have the usual paragraph about hire cars and no hirer liability.  This is NOT about a golden ticket, it’s about the failure to follow para 13 or 14 of the POFA.

Write the appeal without saying who was driving and just saying ‘the occupants of the car did this/that’ and hope the entire long appeal makes PE give up.

Thanks, this is very useful.

About your last paragraph, should I avoid saying who was driving even if I mentioned it was me in the first appeal?

maagnuus

I have now received by post the same PCN but issued on the date that Parkingeye responded to my appeal. All data including Ref number is the same except for the Issue date.

I assume this is to allow another 14 days of reduced payment as they said in their correspondence (quote: "As a gesture of goodwill"), but it confuses me that they include again the paragraph about appealing to Parkingeye. I guess I should ignore this letter and proceed with POPLA?

Thanks!

Coupon-mad

No it’s headed ‘Reminder’. Standard for ParkingEye.

maagnuus

Hello again,

I finally appealed on the following grounds which I adapted from the templates in the NEWBIES post:

1. No period of grace given for the driver to read the additional signs within the car park, make the payment or to exit the car park following the parking period.
2. The ANPR system is neither reliable nor accurate.
3. The signs fail to transparently warn drivers of what the ANPR data will be used for.
4. No clear signage at entrance to car park.
5. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.
6. No evidence of Landowner Authority.
7. The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the POFA 2012 as stated in paragraph 14, sub-paragraph 2 and 3, along with paragraph 13 (2).

 

I have now received PE evidence pack. As a summary:

• Landowner authority is out of date;
• They claim that the consideration period no longer applies if a parking event takes place;
• They claim that the wording used in the small print clearly details that the Parking Contract in question commences when the motorist “enters” the car park:
• "By parking, waiting or otherwise remaining within this private car park, you agree to comply with the terms of the Parking Contract…”
• “[…] by entering this private car park, you [each motorist] consent, for the purpose of car park management, to: the capturing of photographs of the vehicle and registration by the ANPR cameras […] and to the processing of this data […]”.
• They advise that “this Parking Charge was not issued under the Protection of Freedoms Act 2012”.

 

I have drafted my comments to their evidence and it would be great if you could provide some feedback.

• The contract between PE and the landowner commenced on 15/12/2014 and expired after 5 years (p10). They have not proven to have authority to operate on this site & issue PCN’s on the date of the event (03/07/2021). The specific T&C are impossible to read.
• PE have still not produced copies of the documents required when delivering a Notice to Hirer under Paragraphs 14(2) and 13(2) of POFA.
• PE specify only in and out times, fail to state the period of parking and confirm that they issued a session ticket ending at 15:55 h (p8).
• PE claim to offer a grace period but fail to specify what it is (which I believe may be longer than the bare minimum in this specific site), or the grace period allowed by the landowner.
• The small print on the sign images they provide can't be read including the terms on the bottom of Sign Type 1b. At the site they were way up above eye-level and were not legible.
• The photographs of the actual signs on site have no date stamps or are dated on 08/06/2015, 6 years prior to the alleged parking event. These photographs do not indicate the current condition of the signs, which may have been suffered significant deterioration. There is no evidence that these signs are still at those locations.
• The site overview shows the signs to be at the outer edges of the parking areas, so a motorist parking in the centre would not be able to view the signs at all. There is no evidence as to where the vehicle was actually parked. The sign at the entrance to the site makes no reference to a parking charge if the motorist fails to comply with the T&C. Drivers must enter the site and park before reading the signs and they are not given the chance to consider the T&C before entering into the parking contract as per BPA CoP [v8 - Jan 2020] s13.1.
• Articles 13.1 and 13.2 of the BPA CoP are both ambiguous and unfair under the Consumer Rights Act 2015 and are therefore unlawful. They are in contradiction of the PAS232 BSI Government Draft.
• Sign type 1a do not transparently detail what the ANPR camera data will be used for before entering in the car park. PE do not provide any proof of when the equipment was checked or calibrated.
• I didn’t appeal on the grounds that the PCN amount is not a pre-estimation of loss and PE's argument in p6-7 can be dismissed.

 

 

Thanks a lot for your help again!

Coupon-mad

That will be fine if it's under 2000 characters (not word count) but I don't think it is?

maagnuus

Thanks! I will submit this that is now 2000 characters but the main points are still the same.

• The contract between ParkingEye (PE) and the landowner commenced on 15/12/2014 and expired after 5 years (p10). PE have not proven authority to operate on this site & issue PCN’s on 03/07/2021. The specific T&C are not legible.
• PE have not produced copies of the documents required in a Notice to Hirer under POFA p14(2) and p13(2).
• PE specify only in and out times, fail to state the period of parking and confirm that they issued a session ticket ending at 15:55 h (p8).
• PE claim to offer a grace period but fail to specify what it is (which may be longer than the bare minimum in this site), or the period allowed by the landowner.
• The small print on the sign images can't be read including T&C on the bottom of Sign Type 1b. At the site they were way up above eye-level and not legible.
• The photographs of the actual signs on site have no date stamps or are dated on 08/06/2015. They do not indicate the current condition of the signs, which may have suffered deterioration or may no longer be at those locations.
• The site overview shows the signs to be at the outer edges of parking areas, so a driver parking in the centre would not view the signs at all. There is no evidence as to where the vehicle was actually parked. The sign at the entrance makes no reference to a parking charge if failing to comply with the T&C. Drivers must enter the site and park before reading the signs and they are not given the chance to consider the T&C before entering into a contract as per BPA CoP [Jan 2020] s13.1.
• Articles 13.1 and 13.2 of the BPA CoP are both ambiguous and unfair under the Consumer Rights Act 2015 and unlawful. They are in contradiction of the PAS232 BSI Government Draft.
• Sign type 1a do not transparently detail what the ANPR camera data will be used for before entering. PE do not provide any proof of when the equipment was checked or calibrated.
• I didn’t appeal on the grounds that the PCN amount is not a pre-estimation of loss and PE argument in p6-7 can be dismissed.

Best wishes

maagnuus

POPLA came back with an unsuccessfull decission (see below).

I think this is so unfair and the assessor didn't even consider my comments to the evidence pack, specially those about the contract with the landowner. Maybe I am wrong and I am not understanding the contract (English is not my first language), but the contract clearly says: "Initial term: A period commencing on the Effective date and expiring after 5 years". The effective date is December 2014.

I guess there is not a lot to do for now?

Thank you very much to all of you helping in the forum.

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) for either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted.

Assessor summary of your case

The appellant has provided a word document appeal, this will be summarised only.

The appellant says they were the hirer of the vehicle.

The appellant says there has been an insufficient grace period given.

The appellant says there is a grace period at the start and end of the parking period.

The appellant says the evidence only shows the time the vehicle was on site and does not show the time parked.

They say the ANPR system is neither reliable or accurate.

The appellant says the signage fails to warn drivers of what the ANPR data is used for.

They say there is no clear sign at the entrance to the car park and the remaining signage is not prominent, clear or legible from all parking spaces.

The appellant says the operator does not have a contract with the landowner.

They say the operator failed to issue a complaint notice to hirer and therefore does not comply with the Protection of Freedoms Act (POFA) 2012.

The appellant says the driver did not have cash and tried to pay by text message but there was a technical fault. Due to this, they say the driver paid by phone and this process took 10 minutes.

Assessor supporting rational for decision

The appellant has identified as the driver of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the driver.

The operator has provided photographic evidence of signage in the car park that states: “up to 5 hours - £6.00…download the app or visit paybyphone.co.uk or call 0330 400 7275 or text REG and your number plate to 65565…failure to comply with the terms and conditions will result in a Parking Charge of: £100”.

The operator has provided photographic evidence from Automatic Number Plate Recognition (ANPR) cameras that show the vehicle entering the site at 11:31 and exiting at 15:50, a total duration of 4 hours 18 minutes. The operator has provided evidence that shows a payment was made to cover a duration of 4 hours.

The appellant says they were the hirer of the vehicle. They say the operator failed to issue a complaint notice to hirer and therefore does not comply with the Protection of Freedoms Act (POFA) 2012. I note these comments however in their appeal to the operator the appellant identified themselves as the driver. Therefore, POFA is not applicable.

The appellant says there has been an insufficient grace period given. The appellant says there is a grace period at the start and end of the parking period. I note the appellant’s comments however the appellant is quoting out of date information. There is no grace period at the start of a parking event. The British Parking Association Code of Practice section 13.1 states “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. If a motorist remains on site for longer than the consideration period, they have accepted the terms and conditions and entered into a contract with the operator. I can see it took the appellant 24 minutes to pay therefore they had already entered into a contract at the time of paying.

The British Parking Association code of practice states in section 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. The operator has applied a grace period to the end of the parking event however the appellant exceeded this by 18 minutes. As it took the motorist 24 minutes to pay, they should have either left earlier or purchased additional time to cover the overstay.

The appellant says the evidence only shows the time the vehicle was on site and does not show the time parked. They say the ANPR system is neither reliable or accurate. The operator does not have to show how long a vehicle has been parked for. The operator only has to demonstrate how long the vehicle has been on site, which it has done by using ANPR cameras.

The appellant says the signage fails to warn drivers of what the ANPR data is used for. The signage has an image of a camera which would prompt motorists there are cameras on site. Further to this, this did not affect the appellant’s ability to comply with the terms.

They say there is no clear sign at the entrance to the car park and the remaining signage is not prominent, clear or legible from all parking spaces. I note these comments however I am satisfied the appellant saw and read signage. If the appellant had not seen signage or read them, they would not aware they had to pay to park. The appellant paid to park and therefore was aware of the terms. Further to this, signage does not have to be visible from a parking space as it is the responsibility of the motorist to exit the vehicle and seek out signage.

The appellant says the operator does not have a contract with the landowner. The British Parking Association code of practice states in section 7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. The operator has provided evidence of a valid contract and therefore the operator are able to issue PCNs.

The appellant says the driver did not have cash and tried to pay by text message but there was a technical fault. Due to this, they say the driver paid by phone and this process took 10 minutes. I accept it took time for the appellant to pay however time taken to pay is not free. A motorist should take into consideration time taken to pay and pay for longer. When entering onto a private car park such as this one, any motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage in place sets out the terms and conditions of this contract. It is the motorist’s responsibility to comply with the terms and conditions of the car park.

Upon consideration of the evidence, the appellant failed to pay for their full time on site, and therefore did not comply with the terms and conditions. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.