Wye Valley Visitor Centre ParkingEye POPLA Appeal

Coupon-mad

On to POPLA.  See the third post of the NEWBIES thread for example wording, and start with your evidence of trying to pay.

drbayleaf

This is the text so far using most recent examples from the NEWBIES thread and comments from this thread.

(I found a couple of the Newbie 3rd post examples are now out of date due to changes to the grace period section of the BPA CoP).

POPLA Ref: xxxxxxxxxx

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. 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 during the busy Easter Holidays 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 as the machine was out of order. The driver therefore tried to book parking via the PayByPhone app but this was frustrated as the app repeatedly failed to authorise payment. It took several attempts to succeed. [ [ [ QUESTION IF PAYBYPHONE LOG SHOULD BE QUOTED? ] ] ] When success was finally achieved a parking time of 4 hours was booked. At the point that the driver left the car park at 15:35 the only information available 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 period. The driver therefore left the carpark in good time and good faith according to all the knowledge they had available to them.

SCREENSHOT SHOWING 4 MINUTES LEFT AT 15:35

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.
Furthermore it seems entirely feasible, 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 in the busy carpark on the day in question, followed by the PayByPhone app’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.

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 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.

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

Yours faithfully

Wonder if its worth adding reference to the ParkingEye website's Case Study on the Wye Valley Visitor Centre which explains that PE was employed to explicitly to prevent misuse of the carpark by people not visiting the Visitor Centre.

drbayleaf

PayByPhone Screenshot at the exact time the carpark was vacated:
https://photos.app.goo.gl/R13E4X8WbEkCjNVP6

drbayleaf

Just noticed that there is nothing on the ParkingEye rejection letter about how long you have to make an appeal to POPLA. Is that just another of their sly tricks?

Coupon-mad

Maybe.  POPLA Codes last 33 days.

drbayleaf

So ParkingEye added their evidence - lots of photos of the parking signage and a semi redacted and largely illegible copy of the contract along with my correspondence. Most of the text seems to be that it's a fair PCN and the driver should quit complaining and that they have lots of Judges who agree with them.

No mention of the time-delay problems incurred with the PayByPhone app nor the fact that the parking machine was out of order which will be my two points of objection.
 redtacted

KeithP

@drbayleaf, you've shown the world a lot of personal information in that dropbox file.

Enough information in fact, for someone who doesn't have your best interests at heart, to respond to PE's submission as if they were you.

Suggest you remove that dropbox file from your post immediately.

drbayleaf

Didn't think it gave the login details, but indeed I trust too much. Duly noted and redacted. 

Cut to important part and details removed:
https://www.dropbox.com/s/66u4rqlrzwzdr3m/2a34b31d-fe57a0fb2508.pdf?dl=0

Coupon-mad

Yep you need to remove that.  Every bit of data about you is there; your name, address and all contact details, and pics of your car & children.

HOWEVER, I did notice that:

- the landowner document is signed in 2017

- it says above the signatures that the term commences in 2017 and expires 36 months later.

So on the face of this evidence it expired in 2020 and nothing shows it was extended.

Given that PEye are after a PCN for allegedly having a parking session that had 'expired' (even though it had not) POPLA cannot allow one rule for them and another for the appellant! The PCN must be cancelled due to no evidence of landowner authority in 2023.

In addition the document is so heavily redacted, the bit about being allowed an arrival grace period of 20 minutes (or whatever it might be at that rural location) to pay at a machine or to download the app, is covered up.  The operator can't rely only on the BPA CoP 10 minutes' grace, in cases where a LARGE public-facing rural venue like this almost certainly offers longer (and it's impossible to see).  Court of Appeal authority in Hancock v Promontoria states that where a contract that has been disclosed stands to be interpreted by a court/tribunal regarding liability, it must NOT be redacted.

Finally, PEye have not shown any evidence at all of the claimed 'two payment machines' and only one was seen snd it was out if order, which takes extra time after parking, to discover the machine malfunction and then read a sign, look for an alternative and try to download an app for the first time.

ParkingEye have not even shown that payments were being successfully made by ANY method during the time between arriving and managing to pay, just like all the other delayed visitors who were faced with a non-functioning machine then overloaded and crashed the unreliable app.  ParkingEye have ignored that part of the appeal and haven't even shown evidence that the app (let alone the machine) was functioning normally at this busy and large car park.

KeithP

Yes, your latest dropbox posting still has all the information showing that I mentioned previously.

Have you no privacy concerns?

At the top of every page on this Parking Board is this notice...