Initial Parking PCN - York Street Manchester

msa123

Hi All 

I have received a PCN from Initial parking regarding an overstay of 14 mins, 47 secs. I had a similar case with Parking Eye 5 years ago which I won at POPLA stage thanks to the help received here. Tower road Newquay - Page 2 — MoneySavingExpert Forum

I have had the initial appeal rejected and now at POPLA stage again, please see draft below.

I have redrafted the Grace period section as I can see the BPA CoP changed in 2020, however not sure if I need to remove the parts in bold italics about there being a second grace period (this may have been from the old version?) 

Also added in a point about having to strap kids into the car and pack away pushchairs and bags, is this worth keeping in or not? The points on signage and landowner authority still seem relevant. Any other points I should look to add?

I do have the ticket I bought at 15:29. The PCN states entry at 15:24:31 and Exit at 17:39:18, their rejection email states 'We can see that you paid for 2 hours parking time but stayed an additional 14 minutes and 47 seconds'. Should I be adding this detail in and change the paragraph about not knowing the exact periods of parking, this hasn't been disclosed by initial parking, just the entry and exit times given on the PCN. Can make this clearer if there's a way to add coloured text?

Stupidly I forgot to check in here before sending the soft appeal, I covered grace periods and thought it would be straightforward, 5 mins to park and pay, and out within 10 mins of end time seemed a reasonable argument. I'm not sure if I disclosed in one of the drop downs if I was the driver or not, I am the registered keeper of the vehicle and received in post one week after the date. Not sure if that affects my chances in anyway.

Thanks in advance for the support.

msa123

I am writing to challenge a parking charge notice received for parking at York street, M20 2DR car park on xx/xx/xx.

To protect the driver, they have not been named.

My appeal as the registered keeper is as follows:
1. Insufficient consideration and grace period
2. No evidence of Landowner Authority
3. Inadequate signage.

1. No period of grace given for the driver to read the additional signs within the car park, or to exit the car park following the parking period.

This matter appears to flow from an allegation of 'overstay' of a mere 14 minutes and 47 seconds, despite the fact this is not an overstay at all and is unsupported by the BPA. The paid for parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which the parking ticket was purchased or at which it expired.

The BPA Code of Practice (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 "

Kelvin Reynolds, Head of Public Affairs and Policy at BPA states that:

‘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 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,” 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 BPA’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.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”

In addition, the BPA 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.”

For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

It is very clear from the evidence that Initial Parking have failed to uphold the minimum grace periods set out in the BPA Code of Practice, as the total time in the car park exceeded the paid period by only 14 minutes and 47 seconds.

Initial Parking have failed to inform me of the amount of time spent prior to the driver purchasing the ticket and the time spent after the paid for period ended. I object to the unclear information in the PCN and reserve the right to comment when they finally show the timings transparently.

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 this year, ignoring their Trade Body rules from the BPA. 

In this case there was nothing on the signs at the entrance or anywhere seen, that informed the driver that the timing could possibly start at the point of entry. The driver had no idea; nor does the Pay and Display machine give people any information to suggest that the time on the printed ticket is actually wrong and misleading. Surely this is a misleading business practice, any reasonable driver would expect the time to start when the ticket is printed (which is the point that the contract is effected) and rely upon their hour expiring when the receipt says - anything else is perverse and a twisted interpretation of contract law. 

It must be noted that having a 2 year old child and a 2 month old baby, requires a few minutes to strap them into their car seats, ensure they are comfortable for a 2 hour drive home and to pack away essentials such as pushchairs and baby bags.

It is clear from the above that Initial Parking have failed to allow the mandatory MINIMUM Grace Period set out in the BPA Code of Practice. Adequate time must be allowed and this would differ from site to site and dependant on other factors as mentioned above.

 

2. 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 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 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

3. 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

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only.

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print. Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''The signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a '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.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case.

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

 

1505grandad

"For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying."

Unfortunately you have missed para 13.2:-

"13.2 The reference to a consideration period in 13.1 shall not

apply where a parking event takes place." 

Coupon-mad

Don't expect to win but that is the best you can do under the circumstances.

I would go read the (temporarily withdrawn - but ONLY to revisit parking charge levels) statutory Code of Practice published in Feb by the DLUHC.

Quote it in your POPLA appeal as BEST PRACTICE, because it re-establishes the principle that the minimum 5 minute consideration period and the minimum ten minute grace period are separate and BOTH are to be counted (of course) because not to do so would be expecting drivers to arrive, park, read signs and pay in zero seconds, which is a clear unfair term.

msa123

1505grandad said:

"For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying."

Unfortunately you have missed para 13.2:-

"13.2 The reference to a consideration period in 13.1 shall not

apply where a parking event takes place." 

Thanks. I will remove that paragraph 

msa123

Coupon-mad said:

Don't expect to win but that is the best you can do under the circumstances.

I would go read the (temporarily withdrawn - but ONLY to revisit parking charge levels) statutory Code of Practice published in Feb by the DLUHC.

Quote it in your POPLA appeal as BEST PRACTICE, because it re-establishes the principle that the minimum 5 minute consideration period and the minimum ten minute grace period are separate and BOTH are to be counted (of course) because not to do so would be expecting drivers to arrive, park, read signs and pay in zero seconds, which is a clear unfair term.

Thanks. I will amend and add that point in. 

Is it worth adding in the particulars about the time the ticket was bought etc?

Is there any other grounds I can appeal on to make my case stronger?

Fruitcake

Was there a delay between entering the car park and the vehicle being parked, for example by having to drive round looking for a space before one became available?
Was there a delay between the vehicle leaving the parking space and exiting the car park, for example due to queueing traffic?

This is why the UK Government has prohibited the use of ANPR scameras in council and local authority car parks because it only records time on site, not time parked.

Coupon-mad

Is it worth adding in the particulars about the time the ticket was bought etc?

You'll certainly lose if you don't.

Your case hinges on it.


"I will remove that paragraph"

No-one advised you to remove the whole paragraph. That would lose the case.

The advice was merely pointing out what the BPA CoP now says since the BPA (appallingly) decided it would be a jolly wheeze to effectively pull the rug out on people regarding fair consideration periods.

But I told you to counter that with the proposed DLUHC Code.

msa123

Fruitcake said:

Was there a delay between entering the car park and the vehicle being parked, for example by having to drive round looking for a space before one became available?
Was there a delay between the vehicle leaving the parking space and exiting the car park, for example due to queueing traffic?

This is why the UK Government has prohibited the use of ANPR scameras in council and local authority car parks because it only records time on site, not time parked.

No delay in finding a space. But we parked up. Took the kids out and had to attach the car seat to the push chair then went to the pay machine to get the ticket. 

Not really a delay on exit either. It’s a very small car park and was no traffic at that time. 

msa123

Coupon-mad said:

Is it worth adding in the particulars about the time the ticket was bought etc?

You'll certainly lose if you don't.

Your case hinges on it.


"I will remove that paragraph"

No-one advised you to remove the whole paragraph. That would lose the case.

The advice was merely pointing out what the BPA CoP now says since the BPA (appallingly) decided it would be a jolly wheeze to effectively pull the rug out on people regarding fair consideration periods.

But I told you to counter that with the proposed DLUHC Code.

Apologies I’ve misunderstood.

Will redraft and send again in the next day or so. 

Thanks for the advice. 

msa123

I have amended the grace periods sections as below, grateful for any thoughts on this.

1. No period of grace given for the driver to read the additional signs within the car park, or to exit the car park following the parking period.

This matter appears to flow from an allegation of 'overstay' of a mere 14 minutes and 47 seconds, despite the fact this is not an overstay at all and is unsupported by the BPA. The paid for parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which the parking ticket was purchased or at which it expired.

The BPA Code of Practice (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 "

Kelvin Reynolds, Head of Public Affairs and Policy at BPA states that:

‘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 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,” 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 BPA’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.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”

In addition, the BPA 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.”

For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

The Private Parking Code of Practice published by DLUHC on 7 February 2022 (temporarily withdrawn but ONLY to review parking charge levels) confirms in Annex B, the MINIMUM consideration and grace periods as listed in Table B.1 must be applied by parking operators in respect of controlled land where public parking is invited. The table clearly shows on row 3 for Type of Land ‘Tariff for parking – pay up front for specified period (e.g pay and display)’ a minimum consideration of 5 minutes AND a grace period of 10 minutes.

The guidance by DLUHC should be seen as BEST PRACTICE, because it re -establishes the principal that the minimum 5-minute consideration period and the minimum 10-minute grace period are separate and BOTH are to be counted (of course) because not to do so would be expecting drivers to arrive, park, read signs and pay in zero seconds which is a clear unfair term.

As I have a copy of the ticket purchased (also attached as evidence), it can be determined that in this case the driver entered the car park at 15:24, purchased the ticket at 15:29 which is reasonable seeing as they had to first find a space to park in, park the car in a tight parking spot, then take out 2 children, a 2 year old child and a 2 month old baby, who they had to settle after an hour long drive, put on coats as it was cold, put the baby in their pushchair and ensure seat belts are fastened and secure before continuing. Then go to the parking machine, read the tariff and purchase the ticket.

The PCN shows the driver leaving the car park at 17:39, again reasonable and within the 10 minute grace period at the end of a parking event as outlined in BPA CoP 13.3 above. Again arriving back at the car after having lunch, putting 2 children into the car, packing away the pushchair and other personal belongings. Ensuring the child is comfortable and ready for a 2 hour drive home back to Leicester, takes time and can easily amount to taking up a few extra minutes. The driver then sets off and must navigate a tight parking space, the exit time only shows when the car left the car park and not the time when the parking ended.

It is very clear from the evidence that Initial Parking have failed to uphold the minimum grace periods set out in the BPA Code of Practice, as the total time in the car park exceeded the paid period by only 14 minutes and 47 seconds. Approximately 5 mins before purchasing a ticket and just under 10 minutes after the paid parking period ended. Both reasonable and within the guidelines set out above and what is considered best practice.

Initial Parking have failed to inform me of the amount of time spent prior to the driver purchasing the ticket and the time spent after the paid for period ended. I object to the unclear information in the PCN and reserve the right to comment when they finally show the timings transparently.

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 this year, ignoring their Trade Body rules from the BPA. 

In this case there was nothing on the signs at the entrance or anywhere seen, that informed the driver that the timing could possibly start at the point of entry. The driver had no idea; nor does the Pay and Display machine give people any information to suggest that the time on the printed ticket is actually wrong and misleading. Surely this is a misleading business practice, any reasonable driver would expect the time to start when the ticket is printed (which is the point that the contract is effected) and rely upon their hour expiring when the receipt says - anything else is perverse and a twisted interpretation of contract law.

It is clear from the above that Initial Parking have failed to allow the mandatory MINIMUM Grace Period set out in the BPA Code of Practice. Adequate time must be allowed and this would differ from site to site and dependant on other factors as mentioned above.