Wye Valley Visitor Centre ParkingEye POPLA Appeal

drbayleaf

Hello, newbie here, if anyone has advice its appreciated as dyslexia makes writing hard.

A keeper has put together a POPLA appeal following advice on this site. The second and third sections are lifted from another with the point 1 being edited to the keepers requirement. A screenshot of the PayByPhone taken at the point of exit will be included which shows over 4 minutes parking time remaining.

POPLA Ref: XXXXXXXXX
I am the registered keeper and I am appealing this parking charge from ParkingEye at Wye Valley Visitor Centre Car Park.

To protect the driver, they have not been named.

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

1. No period of grace given for the driver to park, read the additional signs within the car park, and make a successful parking payment via PayByPhone app.

On arrival the carpark was full meaning the driver was required to circle the park to find space. The photo on the PCN merely shows the time the driver entered the land and does not record the time of parking. Following parking the obscure signs made clear that PayByPhone was the only means for parking. The PayByPhone app repeatedly failed to authorise payment via online banking and this took considerable attempts to succeed while the drivers young family entered the Butterfly Zoo. When success was finally achieved a parking time of 4 hours was booked. At the point that the driver left the car park the only information available as to the contract entered into – the PayByPhone app – clearly indicated that there was time left on the agreed parking. It seems entirely feasibly that ParkingEye’s ANPR computer technology combined with the internet should make it possible for the PayByPhone app to be given accurate information about the cars arrival time.
This ANPR arrival time data is surely critical to the contract ParkingEye are assuming the driver is entering into via PayByPhone. By seemingly deliberately holding back this data from PayByPhone the driver can surely not be held liable to accurately know to the exact minute what time the time the car parked.
In this situation, given the time taken to find a parking space on the day in question followed by PayByPhone’s repeated failure to authenticate online banking payment which frustrated the booking process, combined with the fact that the driver vacated the parking space in good conscience before their payed time had expired, renders this £100 PCN fine wholly unreasonable. Especially given that the overstay is only 16 minutes total which would itself be accounted for by a typical start and end grace period according to the BPA Code of Practice.

The BPA Code of Practice (13.2) states that parking operators "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." As stated above, the ParkingEye contract signs in this car park are not legible before entry meaning the driver is unable to decide whether parking in the car park would breach any contract before the ANPR captures them. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park. In addition, the BPA Code of Practice (13.4) states that the parking operators “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.”

The driver of the car at the time was captured by ANPR cameras driving in to the car park at 11.19 and driving out at 15.35 on the same date. They were unable to park immediately upon entering the car park due to fullness of the carpark. No mention is made of the 4-hour parking time purchased through PayByPhone on the PCN despite ParkingEye showing that information on their website. As mentioned the purchase of the ticket was frustrated by payment authorisation in the PayByPhone app, and the driver believed in good faith that the parking had been paid for and made sure to leave before the end time as shown in the screenshot captured as they left the carpark at 15:35.

>>>>>>>>>>> SCREENSHOT IMAGE HERE <<<<<<<<<< <br/>
It is clear from the evidence that ParkingEye have failed to uphold the minimum grace periods as set out in the BPA Code of Practice.


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 sporadically placed, indeed obscured and hidden in some areas. They 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 (and does not feature at all on some of the signs). 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.

As demonstrated above, it is clear from the evidence that ParkingEye have failed to uphold the minimum grace periods set out in the BPA Code of Practice, allowing for time to find a space to park, find and read the unclear and confusing signs, and make a successful payment via the forced means being the PayByPhone app which is subject to difficulty and is not provided with the contractual information from ParkingEye – the time of arrival - which one would reasonable expect for such a contract to be entered into.

By any stretch of the imagination, the circumstances and good faith in which the driver followed the PayByPhone booking, 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 appears to be attempting to get more and more false 'overstay' allegations past POPLA this year, ignoring their Trade Body rules from the BPA.

Therefore it is respectfully requested that this parking charge request appeal be upheld on every point.

Yours faithfully

Location also called Wye Valley Butterfly Zoo for future googlers

Also thought/question - do judges not get bored seeing the same appeal text time and time again?

Fruitcake

Check you are quoting the correct version of the BPA CoP as the current version states,

13.2 The reference to a consideration period in 13.1 shall not apply where a parking event takes place. 

Check spelling and grammar. For example, "... know to the exact minute what time the time the car parked."

I would remove this, "while the drivers young family entered the Butterfly Zoo" because it implies leaving the car park before payment was made, and in any case, what other family members did is irrelevant.

Fruitcake

I would also add a point that "Driving around looking for a space is not parking", especially as this was a ParkingEye court case.

Waiting for a space is not Parking. ParkingEye lose in court. Beware of snakes at Fistral Beach

3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time in the car park, not the time parked. The judge ruled this was not against the terms and conditions of the signage. The judge also stated that in any case £100 was not likely to be a true pre-estimate of loss.
In an important case, the judge ruled that the 31 minutes the defendant spent driving round the crowded car park in Whit week did not classify as 'parking'. The ANPR evidence only showed the time of entry and exit to the car park, and not the true time parked. The signage only required payment for times parked, and therefore there was no contravention of the terms and conditions.

I would also add another point that in the Jopson v Homeghuard case the judge determined that attending to a vicissitude of some small duration is not parking.
I would suggest that sorting out an unreliable payment app constituted such a vicissitude.

Case number B9GF0A9E.

*Note that the line I have struck-through is no longer applicable, so should either be omitted or struck-through in your appeal.*


One more point I would add, only having one, unreliable payment method is a breach of the Consumer Rights Act 2015 with regards to the fairness of contract terms, and being unable to pay due to a faulty payment system renders the parking contract void for impossibility.

Coupon-mad

Have you first exhausted the complaint to the Manager of the Butterfly Zoo that you must make first?

They can cancel the PCN.

NEVER EVER try POPLA first.

ONLY if your complaint to the Manager fails:

Your first point should include the fact this is a large car park so more time is taken to drive round it than most, and when it is full it is impossible to see empty bays without driving up snd down every lane and waiting for a lucky space.

Typo here:

"It seems entirely feasibly "

fisherjim

Did you try plan A here, it would seem that Parking Eye's boast that they would sort out this sites parking issues has not worked for you who is a legitimate visitor that the founder was trying to cater for not hound out!

https://www.parkingeye.co.uk/car-park-management/case-studies/wye-valley-visitor-centre/

drbayleaf

@Fruitcake Thank you so much for this assistance.

Here's that point 1 re-written. Perhaps the last but one paragraph is arguing for something different and perhaps not helpful?

1. Insufficient grace period given for the driver to park, read the additional signs within the car park, and then make a successful parking payment via PayByPhone app.

The ParkingEye contract signs in this car park were not legible before entry meaning the driver was unable to decide whether to enter into the parking contract prior to the ANPR capturing them.

On arrival at 11:19 in the Easter holiday period the Wye Valley Visitor Centre car park was full meaning the driver was required to circle the carpark to find a suitable parking space. The photo on the PCN merely shows the time the driver entered the land and does not record the time of parking. As mentioned in the following case, driving around looking for a space is not parking:

3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time in the car park, not the time parked. The judge ruled this was not against the terms and conditions of the signage.

In an important case, the judge ruled that the 31 minutes the defendant spent driving round the crowded car park in Whit week did not classify as 'parking'. The ANPR evidence only showed the time of entry and exit to the car park, and not the true time parked. The signage only required payment for times parked, and therefore there was no contravention of the terms and conditions.

Following parking the obscure signs only made obvious that PayByPhone was the required for parking in large clear letters. The driver therefore tried to book parking via the PayByPhone app but it repeatedly failed to authorise payment. It took considerable attempts to succeed. When success was finally achieved a parking time of 4 hours was booked. At the point that the driver left the car park the only information as to the contract entered into – the PayByPhone app screen – clearly indicated that there was over four minutes of time left on the paid parking.

In the case Jopson v Homeghuard (9GF0A9E) the judge determined that attending to a vicissitude of some small duration is not parking. In this circumstance, an unreliable payment app constitutes just such a vicissitude. Furthermore an unreliable payment method is a breach of the Consumer Rights Act 2015 with regards to the fairness of contract terms. Being unable to pay promptly due to a faulty payment system renders the parking contract void for impossibility.

It seems entirely feasibly, given current internet technology and ParkingEye’s ANPR technology, for PayByPhone to be given an accurate timestamp of the cars arrival (though this is not the parked time). This ANPR arrival time data is surely critical to the contract ParkingEye are assuming the driver is entering into, and would provide the user with a timestamp from which to book if this were shown in the PayByPhone app. By withholding this data from the PayByPhone app the driver is prevented from knowing the information about arrival time which ParkingEye wholly rely on to calculate the parking stay time and fine accordingly.

In this situation, given the time taken to find a parking space on the day in question followed by PayByPhone’s repeated failure to authenticate payment which frustrated the booking process, combined with the fact that the driver vacated the parking space in good conscience before their time had expired, renders this £100 PCN fine unreasonable.

drbayleaf

Side note - paybyphone never issued a notification at this site with reminder to extend the parking period, which is odd as this happens at other sites not operated by such sneeky operators....

drbayleaf

Plus this at the end (does the third paragraph help a case or just sound angry?)

As demonstrated above, it is clear that ParkingEye have failed to allow for time to find a space to park, find and read the unclear and confusing signs, and then make a successful payment via the fallible PayByPhone app.

By any stretch of the imagination, the circumstances and good faith in which the driver followed the PayByPhone booking 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 appears to be attempting to get more and more false 'overstay' allegations past POPLA this year, ignoring their Trade Body rules from the BPA.

drbayleaf

Coupon-mad said:

Have you first exhausted the complaint to the Manager of the Butterfly Zoo that you must make first?

They can cancel the PCN.

NEVER EVER try POPLA first.

Thanks @Coupon-mad

Their website makes it very clear they don't deal with parking and one has to appeal to PE (which has been done). Facebook page has been contacted but one should attempt to phoneline too - thanks.

drbayleaf

fisherjim said:

Did you try plan A here, it would seem that Parking Eye's boast that they would sort out this sites parking issues has not worked for you who is a legitimate visitor that the founder was trying to cater for not hound out!

I'd not seen that ! Yikes! Shot in foot? But direct appeal was rejected despite photos of drivers cute kids holding butterflies (might have been a mistake!!). 

Fruitcake

Exhaust all options to get the landowner to cancel it. Presumably it is they who employed the PPC, therefore they should have the ability to instruct their sub-contractor to cancel it.
Also complain to your MP and ask them to forward it to the MP responsible for the constituency where the alleged event occurred.

If that fails, then appeal to PoPLA. Note that PoPLA codes last 32-33 days.

Show us the whole of your draft appeal before you submit it. Make sure each point is numbered and that headings and numbers match the appeal points.