Charge received for 9 minutes parking

Hippyer

I found two other posts regarding this, thank you.

I have a draft and would appreciate opinions.

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POPLA Ref: xxxx

Vehicle Registration: xxxx

I, a named driver of this vehicle, received a letter dated 13/10/22 acting as a notice to the registered keeper. My appeal to the Operator – Parkingeye – was submitted and acknowledged by the Operator on 18/10/22 and rejected via an email dated 11/11/22. 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 – Incorrect car park location indicated

3 – Two of three payment methods were not working

4 – Driver left and parked at a different car park

The BPA’s Code of Practice states (13) that there are two grace periods: one at

the end (of a minimum of 10 minutes) and one at the start.

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

“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.”

BPA’s Code of Practice (13.2) states that:

“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.”

BPA’s Code of Practice (13.4) states that:

“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.”

BPA’s Code of Practice (18.5) states that:

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

The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the

car park should be a minimum of 10 minutes. Whilst 13.4 does not apply in this

case (it should be made clear - a contract was never entered in to), it is

reasonable to suggest that the minimum of 10 minutes grace period stipulated

in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 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.”

Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus

ParkingEye – Tower Road, Newquay) which was successful on the grounds that

the assessor believed 11 minutes was a “reasonable grace period” and that “by

seeking alternate parking arrangements, the appellant has demonstrated that he

did not accept the conditions of the parking contract.”

Finally, on 30th July 2015, the minutes of the

Professional Development & Standards Board meeting show that it was formally

agreed by the Board (of BPA members and stakeholders) that the minimum

grace period would be changed in 13.4 of 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:

http://www.britishparking.co.uk/write/Documents/Meeting Notes/Governan

ce/20150730_PDandS_Board_Action_Notes.pdf)

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 – certainly an allegation of under eleven minutes (as is the case

here) is perfectly reasonable.

As stated earlier in this section, whilst 13.4 does not apply in this case (as a

contract was never entered in to), it is not unreasonable to suggest that

clarification of this time period in relation to 13.4 also goes some way to clarifying

the terms “reasonable period” and “reasonable grace period” stated in 13.1 and 13.2 respectively of the BPA’s Code of Practice.

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 (in this case in the dark with no lighting), decide not to enter into a

contract and then leave the car park.

It is therefore argued that the duration of visit in question (which Parkingeye

claim was 9 minutes 3 seconds) is not an unreasonable grace period, given:

a) The lack of sufficient signage throughout the car park in question (non-

compliance with BPA Code of Practice 18.3) and the impact of that upon time

taken to locate signage prior to entering into a contract.

b) The lengthiness of Parkingeye’ signage in terms of word count. (See image 1)

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 (one example being

identifying which fees apply.

• Decide not to park and therefore not to enter into a contract.

• Return to car and safely leave the car park.

2 - The location of the car park indicated on the original parking charge notice is Corporation Street Preston PR1 2UP. This is not the correct location for where the vehicle was parked. The vehicle was in fact parked in a small car park off Seed St, close to the location given but completely separate. A flawed PCN with a wrong location can not hold me liable.

3 – Of the two payment machines available, one was out of order and another member of the public was unable to successfully use the other as incorrect letters came up on the display when he tried to enter his vehicle registration number. After locating an option to pay by text message I attempted to do so, only to find that this payment method was not possible either. (See image 2)

4 – After deciding not to enter in to contract at Seed Street Car Park I chose to park elsewhere. (See attached file dfdsf.pdf)

Coupon-mad

There are not two grace periods.  The BPA CoP was updated in 2020.

As I advised already (I think) this should be your FIRST point, with evidence:

"Driver left and parked at a different car park"

Hippyer

Ok, so I guess I scrap all of the lengthy grace period stuff.

Here is draft 2. Is it sufficient?

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POPLA Ref: xxxx

Vehicle Registration: xxxx

I, a named driver of this vehicle, received a letter dated 13/10/22 acting as a notice to the registered keeper. My appeal to the Operator – Parkingeye – was submitted and acknowledged by the Operator on 18/10/22 and rejected via an email dated 11/11/22. I contend that I am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1 – Driver left and parked at a different car park

2 – Two of three payment methods were not working

3 – Incorrect car park location indicated

4 – Grace Period: BPA Code of Practice – non compliance

1 – Driver left and parked at a different car park

The driver left the car park before entering in to contract and parked elsewhere. Evidence of parking elsewhere can be found in the attached safdgsdf.pdf file. This evidence clearly shows that parking elsewhere began at 13:38, which is only 14 minutes after the PCN shows the vehicle exiting. This evidence shows the driver has paid for a period of four hours to park elsewhere. This signals the length of time the driver required to park in the local area and that no agreement was formed in using the car park contained in the PCN.

2 – Two of three payment methods were not working

Of the two payment machines available, one was out of order and another member of the public was unable to successfully use the other as incorrect letters came up on the display when he tried to enter his vehicle registration number. After locating an option to pay by text message the driver attempted to do so, only to find that this payment method was not possible either. (See image 1). The driver was not comfortable downloading and using a new app to make payment. Driver decided to not enter in to contract and leave.

3 – Incorrect car park location indicated

The location of the car park indicated on the original parking charge notice is Corporation Street Preston PR1 2UP. This is not the correct location for where the vehicle was parked. The vehicle was in fact parked in a small car park off Seed St, close to the location given but completely separate. A flawed PCN with a wrong location can not hold driver liable.

4 - Grace Period: BPA Code of Practice – non compliance

The BPA code of practice states that there is to be a ten minute grace period. The PCN claims that the vehicle was on the property for a period of 9 minutes and 3 seconds. This event is considered a grace period where no contract was formed.

Hippyer

I have a picture of the sign, so is it advisable to add something about the sign having a high word count?

Coupon-mad

Don't attach separate images.  Embed them as Fig 1, Fig 2, etc., into your word doc so it looks like a storybook with pictures.  One PDF to upload to POPLA. So much easier and quicker for the Assessor to grasp and much more memorable.

The BPA code of practice states that there is to be a ten minute grace period. 

No, it doesn't.

You are talking about the consideration period (NOT grace period) and it's ' a minimum of five minutes '.

But that is a minimum and applying ONLY 5 minutes is clearly intended to be rebuttable, based upon evidence and circumstances.  A mere nine minutes is not excessive for a driver to:

(a) drive past the camera at the entrance (a minute)
(b) find a parking space (a minute)
(c) reverse in and park, lock the car and walk over to read a sign and find the nearest machine (a minute)
(d) try to use said machine, only to discover it is failing (a wasted minute)
(e) try a second machine but find another motorist there, bemoaning the fact this wasn't working either (a wasted minute)
(f) read about alternative payment methods and try to download a new app but it isn't loading (three wasted minutes)
(g) walk back to the car, get in and drive out to an alternative car park where the offered contract is working (a minute).

= nine minutes is therefore not unreasonable, and the evidence of the alternative payment elsewhere proves that there was no 'agreed' contract once it was apparent none of the payment methods were working properly.  The only agreed and fulfilled parking contract took place in the second car park, as evidenced.

You need to add two more points at the end as well:

- the landowner authority issue as discussed in other Seed car park threads (or just use the template point from the NEWBIES thread post #3 if you cannot pinpoint what I was recalling about this possibly being a contract with another parking firm.  I could be recalling it wrong).

- the fact that the signage only communicated the tariffs in very large lettering and not the 'penalty', which was hidden in small print and not on any sign adjacent to the machines where the driver spent these frustrating minutes.

Hippyer

The sign shows the penalty charge in larger text than the tariffs are displayed, so I have left out your final point.

I hope this is close to being ready to send now. Please let me know your thoughts.

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POPLA Ref: xxxx

Vehicle Registration: xxxx

I, a named driver of this vehicle, received a letter dated 13/10/22 acting as a notice to the registered keeper. My appeal to the Operator – Parkingeye – was submitted and acknowledged by the Operator on 18/10/22 and rejected via an email dated 11/11/22. I contend that I am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1 – Driver left and parked at a different car park

2 – Two of three payment methods were not working

3 – Incorrect car park location indicated

4 – Consideration period did not lead to contract

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

1 – Driver left and parked at a different car park

The driver left the car park before entering in to contract and parked elsewhere. Evidence of parking elsewhere can be found in figure 1. This evidence clearly shows that parking elsewhere began at 13:38, which is only 14 minutes after the PCN claims the vehicle exited. This evidence shows the driver has paid for a period of four hours to park elsewhere. This signals the length of time the driver required to park in the local area and that no contract was entered for the car park contained in the PCN.

2 – Two of three payment methods were not working

Of the two payment machines available, one was out of order and another member of the public was unable to successfully use the other as incorrect letters came up on the display when he tried to enter his vehicle registration number. After locating a sign and learning about an option to pay by text message the driver attempted to do so, only to find that this payment method was not possible either. (See figure 2). The driver was not comfortable downloading and using a new app to make payment. Driver decided to not enter in to contract and leave.

3 – Incorrect car park location indicated

The location of the car park indicated on the original parking charge notice is Corporation Street Preston PR1 2UP. This is not the correct location for where the vehicle was parked. The vehicle was in fact parked in a small car park off Seed St, close to the location given but completely separate. A flawed PCN with a wrong location can not hold driver liable.

4 – Consideration period did not lead to contract

The PCN claims that the vehicle was on the property for a period of 9 minutes and 3 seconds. The BPA code of practice states:

"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."

In this instance a period of nine minutes is not an excessive consideration period to:

(a) drive past the camera at the entrance (a minute)
(b) find a parking space (a minute)
(c) reverse in and park, lock the car and walk over to read a sign and find the nearest machine (a minute)
(d) try to use said machine, only to discover it is failing (a wasted minute)
(e) try a second machine but find another motorist there, bemoaning the fact this wasn't working either (a wasted minute)
(f) read about alternative payment methods and try to initate payment via txt (three frustrating minutes)
(g) walk back to the car, get in and drive out to an alternative car park where the offered contract is working (a minute).

This equals nine minutes. It is therefore not unreasonable, and the evidence of alternative payment for parking elsewhere proves that there was no 'agreed' contract once it was apparant none of the attempted payment methods were working properly. The only agreed and fulfilled parking contract took place in the second car park, as evidenced earlier in figure 1.

5 - 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

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

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

7.3 The written authorisation must also set out:

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

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

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

d who has the responsibility for putting up and maintaining signs

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

Hippyer

Could someone please comment on whether they believe the draft posted in my last comment looks like it should be successful or if anything should be added or omitted?

Hippyer

I won my appeal.

Umkomaas

Hippyer said:

I won my appeal.

Well done. Did PE fight this at POPLA, or did they withdraw once they saw your appeal?  If they did fight it, causing the adjudicator to make the decision to find in your favour, could we see the transcript of the decision, but as POPLA send these out in an appalling, unprofessional wall of un-paragraphed text, would you put in around 10 paragraphs breaks to make it readable, please. 

Hippyer

The operator withdrew.

Thank you to all who helped. It's much appreciated.