Unable to pay at car park

Umkomaas

I didn't admit to being the driver as far as I recall, but I didn't explicitly reply as the keeper either. I didn't think to keep a transcript of the appeal I sent (via their web page) and of course it's disappeared now. I wish I'd found this site before I made the PE appeal.

Send PE a SAR which might unearth it. The NEWBIES FAQ Announcement, second post, has a link to a SAR template.  However, PE have 30 days to respond, so that might take it past the POPLA deadline (which you must not miss), but see if they respond earlier. Whatever, it will come in useful if it gets to a court hearing. 

Coupon-mad

We've heard of this place before. There's even an example ParkingEye court defence in the NEWBIES thread second post about this butterfly zoo.  I don't suppose you noticed if as it's in the 2nd post about court stage. Worth reading the thread it links to.

But your log of where your car was, showing only ten minutes (not eleven) and that you then parked elsewhere is exactly what I meant. Use it at POPLA. 

I was never suggesting you dispute being there!  It's sbour recounting the issue you had and that you then parked elsewhere and can prove it.  No contract was accepted and you left in under 10 mins (proves their camera timings are 'out') and found an alternative place to visit.

Of course you need to also read the NEWBIES thread 3rd post and use the standard other POPLA paragraphs too.

BigBaldJohn

I'm in the process of collecting evidence for the POPLA appeal.

The image below shows the terms and conditions. Hopefully it's legible, if necessary I'll type them out.

I have a few questions, if I may:

Is v8 (2020) the latest version of BPA Code of Practice?

My appeal will rely heavily on them not allowing the required grace periods. Paragraph 13.1 says separate ‘entry’ and ’exit’ grace periods exist but is unclear about the length. Somebody mentioned the rules state 10 minutes but v8 only says "minimum of 5 minutes" each. Previous version of Code of Practice(v7, 2018) says explicitly ‘minimum of 10 minutes’ for each. Butterfly farm website says 10 minutes but not if they intend each period to be 10, just 10 at the exit or10 in total. What is the correct interpretation of this paragraph from an appeal and/or legal point of view?

One of the terms in the Ts&Cs says “By parking, waiting or otherwise remaining within this car park you agree to comply with the Parking Contract[…]”. Of course you can’t read them without ‘remaining’ in the car park, are T&Cs that say ‘read this and you are bound by it’ reasonable?

I'm thinking of challenging whether the car was parked at all and therefore whether any contract was formed. Paragraph 19.9 says "there must be a sign containing Ts&Cs that can be viewed without needing to leave the vehicle" (for disabled motorists). This means they can't consider parking to have started simply by the driver getting out to read the sign and (by extension) pay. Or try to pay and fail, in this case. Certainly I intended to enter in to a contract to park but the  contract was frustrated by the failure of the payment mechanism. Or am I barking up the wrong tree?

Are Ts&Cs reasonable regarding data protection/privacy?

Again, as always, many thanks for helping a complete stranger in your own time.

Cheers

Coupon-mad

If you were there more than 5 mins then the 2020 CoP doesn't assist you as you only had 5 mins all told to arrive and leave.  Terrible, isn't it? Yes that's the latest CoP. you can see that from the BPA website where they are all published.

Are Ts&Cs reasonable regarding data protection/privacy?

Yep, POPLA won't care as they don't look at data issues.

Most people lose at POPLA (you will lose, I think) and ParkingEye WILL NOT cancel even if the landowner asks them to, if that comes AFTER you costing them money with a POPLA appeal.

Hence why absolutely exhausting and throttling the landowner complaint 'easy cancellation route' (it takes the landowner ONE email!) is PLAN A.

BigBaldJohn

Coupon-mad said:

If you were there more than 5 mins then the 2020 CoP doesn't assist you as you only had 5 mins all told to arrive and leave.  Terrible, isn't it? Yes that's the latest CoP. you can see that from the BPA website where they are all published.

Are Ts&Cs reasonable regarding data protection/privacy?

Yep, POPLA won't care as they don't look at data issues.

Most people lose at POPLA (you will lose, I think) and ParkingEye WILL NOT cancel even if the landowner asks them to, if that comes AFTER you costing them money with a POPLA appeal.

Hence why absolutely exhausting and throttling the landowner complaint 'easy cancellation route' (it takes the landowner ONE email!) is PLAN A.

OK, thanks. Disappointing, but hey-ho.

The butterfly farm have already said on their website they won't intervene. I wasn't even a paying customer, didn't get that far! 

I wonder if someone on the forum would be kind enough to comment on my draft POPLA appeal:

POPLA reference:            xxxx

Parkingeye reference:   xxxx

Dear Sir,

I wish to appeal the above parking charge.

In summary, I intended to visit the butterfly farm to which the car park is attached. I attempted to pay for parking using the app but it did not work correctly, despite previously working at other sites. I had no cash available and decided to leave the car park and park elsewhere.

I appeal the parking charge as the registered keeper, on the following grounds:

1.       Failure to adhere to the site Consideration and Grace Periods.

2.       No contract formed due to the failure of the payment mechanism on site.

3.       Poor signage.

4.       ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing.

5.      No Evidence of Period Parked – Notice to Keeper does not meet Protection of Freedoms Act 2012 requirements.

6.       Vehicle Images contained in Parking Charge Notice: British Parking Association Code of Practice – non-compliance.

7.       The ANPR System is Neither Reliable nor Accurate.

 

1.       Failure to adhere to the Consideration and Grace Periods.

The British Parking Association Code of Practice clearly highlights within section 13 that a company’s approach to parking management must ensure 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. The amount of time in these instances will vary dependant (sic) on site size and type but it must be a minimum of 5 minutes.”

Subsections 13.3 offers further clarification stating that

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.

These time periods are a minimum, not a maximum. I ask that ParkingEye be asked to state what grace periods were applied in this case.

The parking charge notice claims that the vehicle was in the car park for 11 minutes. The times quoted are merely an indication of the time of entry and exit and are no proof that a parking event occurred. I put the operator to strict proof that a parking event did occur.

The journey log from the vehicle shows that it was at the car park for only 10 minutes, from 11:41 to 11:51 and that it then went to another attraction in the area:

(image shows Google map of journey from the butterfly zoo to another tourist attraction, with arrival and departure times quoted)

Even if the time period of 11 minutes were correct (this is disputed) it is still within the 5 minutes ‘observation’ and 10 minutes ‘grace’ periods required by the British Parking Association.

Please see below statements from Kelvin Reynolds, Head of Public Affairs and Policy at British Parking Association:
There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The British Parking Association’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,” he explains.

“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.”

The British Parking Association’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

To briefly summarise his definition, an observational period must include sufficient time for a motorist to park, observe the signs, make a decision as to whether they wish to comply with the conditions and park.

It is very clear from the evidence that ParkingEye have failed to uphold the minimum grace periods set out in the British Parking Association Code of Practice, as the total time in the carpark was only 11 minutes, a sum of 7 minutes prior to leaving the vehicle (finding a bay to park, check the vehicle was sited correctly, secured correctly and then to find and read any available signage, and 4 minutes after the parking period had ended (to get in the car, carry out any safety checks on the vehicle and then leave the car park).

By any stretch of the imagination, these few minutes are well within what an ordinary independent person assessing the facts would consider reasonable. In fact this case demonstrates significant unreasonableness on the part of this notorious parking operator who appear to be attempting to get more and more false 'overstay' allegations past POPLA, ignoring their Trade Body rules from the British Parking Association.

Again, it is undeniably clear from the evidence that ParkingEye Ltd. have failed to uphold and consider the necessary grace periods set out in the British Parking Association Code of Practice, as the total time within the car park does not allow for the driver to make the necessary observations, as highlighted by Kelvin Reynolds above, nor allow the necessary grace period for leaving the car park.

2.       No contract formed due to the failure of the payment mechanism on site.

I attempted to use the PaybyPhone app as suggested by the signage. For reasons unknown, the app failed to work despite multiple attempts and I was unable to pay and enter into a parking contract. Since the failure caused frustration of any contract that may have been, there ultimately was no contract. I had no cash to pay in that way and due to the poor performance of the app I decided not to attempt to call the phone number given but instead to leave the car park and go elsewhere.

 

3.       Poor signage.

The signs are placed above head height making it extremely difficult for me to read them. I am unable to look up for an extended period due to my spine being fused by metal rods and the notices were therefore not fully available to me.

As far as I could ascertain there was no mention of a time limit during which payment must be completed. Were such information available I would have ensured that I vacated the site after the initial failure of the app instead of taking the time to try several times. This limit would seem to be central to Parkingeye’s case and their failure to display the information means I had no way to know the charge would be applied even if payment is not possible. Such a position would seem to be entirely unreasonable in any case.

 

4.       ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing.

It is suggested that Parkingeye Ltd. does not have proprietary interest in the land and merely acts as agents for the owner/occupier. Therefore, I ask that Parkingeye be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the claimed parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed “witness statement” slip of paper saying it exists.

Paragraph 7 of the British Parking Association   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

 

5.       No Evidence of Period Parked – Notice to Keeper does not meet Protection of Freedoms Act 2012 (PoFA) requirements.

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

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

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

Parkingeyes’ Notice to Keeper states “Time in Car Park 0 hours 11 minutes Arrival Time 11:40:18 Departure Time 11:51:36”. At no stage do Parkingeye explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.

The Notice to Keeper states an arrival and departure time and period in car park. It is not in the gift of ParkingEye to substitute “entry/exit” or “length of stay” in place of the PoFA requirement - “period of parking” - and hold the keeper liable as a result.

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

I require ParkingEye to provide evidence to show the vehicle in question was parked on the date/time and at the location stated in the Notice to Keeper.

6.       Vehicle Images contained in Parking Charge Notice: British Parking Association Code of Practice – non-compliance.

The British Parking Association 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 Parking Charge Notice in question contains images of the vehicle and close-up images of the vehicle number plate. None of these images contain a date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).

The time and date stamp has been inserted into the letter above (but not part of) the images. As these are not compliant images, I require ParkingEye to produce evidence of compliant images properly containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these images to the location stated.

7. The ANPR System is Neither Reliable nor Accurate

The Parkingeye Notice to Keeper shows no parking time, merely images of the vehicle and 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:

““Time in Car Park 0 hours 11 minutes Arrival Time 11:40:18 Departure Time 11:51:36”.

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

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

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

Paragraph 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 ‘consideration 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 images of the vehicle allegedly entering and leaving the car park at specific times (11 minutes apart), it is vital that Parkingeye produces the evidence requested in the previous paragraph.

 

I believe the points I have raised show that the charge should be cancelled and I respectfully ask that you uphold my appeal.

Best regards

Coupon-mad

Landowners always say in websites they won't intervene. That doesn't stop us. Means nothing.

This is the ONLY way you will see this cancelled.

I may have missed this on your thread, but when I say 'throttle that option' I really mean it.

So, what happened when you complained to the Manager anyway, and pointed out their User Manual from PEye allows them to cancel any PCN by email for genuine patrons, and you'd like them to exercise that option now please because your appeal was rejected out of hand. If not, then you will have to defend a court claim which is ridiculous and you will call a member if the Butterfly farm management team to court to answer for the unreasonable actions of their 'auto-PCN machine' parking agents, and to explain why they didn't exercise the cancellation option in the PEye contract and User Manual, to resolve the dispute amicably.

You will lose at POPLA and will then have burnt your boats. because PE will only cancel for most landowners before POPLA.

So, I'm unable to helpfully comment on the draft POPLA appeal because I simply can't suggest you do it.  You'd be better trying to get PE to see sense at LBCCC stage than POPLA.

We know what we are doing here. Exhaust the complaint and if that means another family member writing a really robust complaint, because that's not your forte, then do that.

BigBaldJohn

Hi Coupon-mad,

Please don't think I'm ignoring your advice, I really do appreciate it. I'm just preparing for the expected refusal of the site manager to help and time is running out for the POPLA appeal.

Their web site does a very good job of hiding their contact details, I have only just found an email address.

I have just sent them the following:

For the attention of the General Manager, Wye Valley Visitor Centre

 Dear Sir,

 I recently came to the butterfly zoo but was unable to pay for parking so was sadly forced to leave after a few minutes. I subsequently received a parking charge of £100 for non-payment of parking!

 I’m sure you will agree this is completely unacceptable and I would like you to instruct Parkingeye to cancel the charge.

 The User Manual from Parkingeye points out that you are able to cancel a charge for genuine patrons and I would like you to exercise that option now because my appeal was rejected out of hand. It only takes an email to them.

 If the charge is not cancelled I will have to defend a court claim which would be ridiculous and I shall defend vigorously. In this I shall be calling a member of your management team to court to answer for the unreasonable actions of your notorious ‘auto-charge notice machine’ parking agents and explain why you did not exercise this cancellation option and have the matter settled amicably.

 Please quote reference number xxxxx in your email.

 Regards

The entire tone of the web site is that they won't help but here's hoping your words cause them to see sense.

Again, thanks for your help. I wouldn't have thought of most of the phrases in the email!

Cheers

John

Fruitcake

You haven't explained why you were unable to pay. You make it sound like you didn't have any money. If it was a PDT/phone app/phone signal/card reader error, then you should say so.

BigBaldJohn

Fruitcake said:

You haven't explained why you were unable to pay. You make it sound like you didn't have any money. If it was a PDT/phone app/phone signal/card reader error, then you should say so.

OK, thanks, I'll add that to the initial summary. It does say later on that the app did not work and I had no cash but it's quite buried.

Cheers
John

[edit]
Duh, my thick. You were probably referring to the email... You're right, but it's sent now!

Cheers
John

Le_Kirk

BigBaldJohn said:

Fruitcake said:

You haven't explained why you were unable to pay. You make it sound like you didn't have any money. If it was a PDT/phone app/phone signal/card reader error, then you should say so.

OK, thanks, I'll add that to the initial summary. It does say later on that the app did not work and I had no cash but it's quite buried.

If you had no cash how were you going to pay for entry to the butterfly farm and for snacks etc.  Unless of course you meant no change.