Parkingeye - Ocean Terminal Short Stay Car Park Southampton

FrozenFishfingers

Hi everyone,

A relative recently received a PCN from Parkingeye after parking in the short stay car park at Ocean Terminal Southampton.

They were in Southampton to collect a family member from a cruise and were insturcted to park there due to the late arrival of the ship. They paid for the period of time that they were in the car park, however have mentioned that the nearest ticket machine to them was out of order and when they found another there was a signifcant queue.

I've checked some of the other threads for the same car park and the key point seems to be that the land is covered by Byelaws and therefore not 'relevant land' for PoFA.

I've drafted an appeal for them to submit to Parkingeye based on similar threads.  I'm not sure whether I should include points 3 and 4 or whether these are unnecesary so if anyone has any thoughts that would be great.

I'm assuming it will get rejected by Parkingeye but thought it would be useful to try and get everything lined up ready for the POPLA appeal as well.

I dispute your 'parking charge', as the registered keeper of the vehicle. I deny any liability or contractual agreement and there will be no admissions as to who was driving and no assumptions can be drawn.

I am challenging your parking charge notice on the following grounds:

1. The land concerned is subject to Byelaws and is therefore not relevant land, in which case keeper’s liability under PoFA does not apply.

2. The driver was attending Ocean Terminal to collect a relative with mobility issues.  The driver has assured me that they obtained verbal permission and were instructed to park in this area by an ABP staff member due to the late arrival of the ship the relative was on and in order to avoid causing an obstruction to other passengers.  The staff member did not alert them to Parkingeye’s terms and conditions, nor the possibility of any parking charges.

Southampton Byelaws state:

37. No person shall:

(a) except with the permission of ABP, deposit or place on any part of the dock estate any goods or park any vehicle so as to obstruct any road, railway, building, mooring place, plant, machinery or apparatus or the access thereto;

Or

(b) without lawful authority, use, work, move, or tamper with any plant, machinery, equipment or apparatus at the dock estate.

Clearly stating that an individual may park with permission of ABP regardless of obstruction. 

3. The Parking Charge Notice states that ‘a parking charge is applicable if the motorist fails to make the appropriate tariff payment’.  You have provided no details of the appropriate tariff, nor the length of time that you believe the driver failed to make payment for.

The driver has assured me, and has evidence in the form of the parking ticket receipt obtained on the day, that they paid the appropriate tariff for the time spent in the car park. 

Please provide details of the tariffs applicable to the site and the length of time that you allege was unpaid.  Please also provide evidence of signage displaying this tariff and evidence of where these are located on the site. 

4. The driver informed me that upon arrival at the car park, the nearest ticket machine was out of order, and they therefore needed to locate another machine.  Upon finding an alternative machine there was a significant queue due to the lack of working machines on that day. 

Please confirm how many ticket machines are available in the car park and evidence of how many were in operation on 4th August 2023. 

5. Further to the above, the evidence you have provided only indicates the time of arrival and departure from the car park.  It does not accurately reflect the amount of time the driver occupied a parking bay.  Rather it includes time spent entering the car park, driving around the car park to locate a parking bay, time spent locating a working ticket machine and time spent exiting the car park.  The driver has assured me that the total time spent parked is considerably lower than quoted in your correspondence. 

Please confirm what grace periods have been agreed with the landowner.

6. The driver has informed me that they were unaware of any signs that stated the terms and conditions of the car park, or signs indicating the possibility of an individual incurring a £100 parking charge. 

Please provide evidence of this signage and details of their placement in relation to where the driver parked. 

7. The images of the vehicle were taken by on site ANPR surveillance cameras that the driver was not made aware of.  To the driver’s knowledge there were no signs indicating that any data collecting surveillance was in operation which violates the requirements set down in the British Parking Associations Code of Practice relating to signage. 

Please provide evidence that such signage is present and details of where these signs can be found on site. 

8. Further to the above, the image of what is alleged to be my vehicle leaving the site, is of extremely poor quality and the vehicle’s number plate is impossible to read. 

Please provide a higher quality image which clearly shows the vehicles number plate. 

9. You have failed to provide any evidence that Parkingeye have the right to issue the Parking Charge notice. 

Please provide evidence that you have acquired authorisation from the landowner to do so. 

10. Further to point 9, please provide a full copy of the current contract with the landowner.

Umkomaas

I would just go with 1 and 2, the rest is not required and in any case too much detail.  PE have no case against the registered keeper (RK).  End it by saying that as they have no lawful case against you (your relative), they must proceed to correspond with the driver. Leave it at that.

They might come back asking for driver details, but ignore that letter, after which they might just reject the appeal and send a POPLA code, or simply cancel the charge. 

After submitting the appeal (maybe give it 7 days or so), log in to the PE website with required details (PCN reference and VRM usually) to check the current status of the charge. That should tell how it is progressing.

Coupon-mad

I don't think the long version would have fitted in ParkingEye's appeal reasons box anyway!

FrozenFishfingers

Thanks both! I'll cut it down and stick to the relevant points.

I'll update the thread with any progress.

FrozenFishfingers

Hi everyone,

ParkingEye have provided an initial response to my appeal.  They haven't confirmed whether it is upheld or rejected but have asked for details of the driver and provided two pages of waffle about PoFA and Beavis.

Given that PoFA doesn't apply due to the Byelaws in place, I'm planning to respond by essentially just repeating the points made in my appeal.  However ParkingEye's response didn't provide details of how to do this, would I be correct in thinking this should be submitted via the appeal section of their website?

Umkomaas

Given that PoFA doesn't apply due to the Byelaws in place, I'm planning to respond by essentially just repeating the points made in my appeal.  However ParkingEye's response didn't provide details of how to do this, would I be correct in thinking this should be submitted via the appeal section of their website?

Did you see my advice on 21 August @ 10:38am?

They might come back asking for driver details, but ignore that letter, after which they might just reject the appeal and send a POPLA code, or simply cancel the charge.

FrozenFishfingers

Umkomaas said:

Given that PoFA doesn't apply due to the Byelaws in place, I'm planning to respond by essentially just repeating the points made in my appeal.  However ParkingEye's response didn't provide details of how to do this, would I be correct in thinking this should be submitted via the appeal section of their website?

Did you see my advice on 21 August @ 10:38am?

They might come back asking for driver details, but ignore that letter, after which they might just reject the appeal and send a POPLA code, or simply cancel the charge.

Ah thank you!  That'll teach me not to re-read the thread before replying!

I'll ignore until I recieve an appeal outcome and will update the thread then.

FrozenFishfingers

6.       The times recorded on the Parking Charge Notice are not indicative of the time spent parked

 

The Parking Charge Notice alleges an overstay based on times recorded by the ANPR Cameras.  However, the ANPR cameras only indicate the time of arrival and departure from the car park, they do not accurately reflect the amount of time the driver had spent parked.

 

Rather, it includes the time spent entering, driving around and driving to the area where they were instructed to park by port officials and the time spent exiting the car park.  The driver claims that due to these limitations the actual amount of minutes the vehicle was stopped (parked) was considerably lower than what is quoted in ParkingEyes’s Parking Charge Notice and was in fact under 2 hours.

 

ParkingEye have failed to provide any evidence that the total amount of time spent stopped (parked) within the car park exceeded 2 hours.

 

7.       Grace Period: BPA Non-Compliance

 

Linked to point 6 above, Parking Charge Notice alleges an overstay, however the time recorded by the ANPR cameras is not indicative of the time spent parked.

 

The British Parking Association code of practice 13.2 states: 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.

 

13.4 states: 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.

 

The BPA Code of Practice sets a MINIMUM ten minutes just to leave, not a maximum grace period all told. For the avoidance of doubt, the second 'grace' period of at least ten minutes is in addition to the separate, first 'observation period' that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to read & observe the signage terms.

 

Kelvin Reynolds of the BPA says:

 

“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.”

 

So the BPA believes that 5-10 minutes 'observation' period is acceptable depending upon various factors and then you must allow a MINIMUM of another ten minutes at the end - and Mr Reynolds says: ''there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.''

 

The ParkingEye Parking Charge Notice alleges a total overstay of 21 minutes.   ParkingEye have failed to explain what observation periods or grace periods are applicable, however given the observation period and grace periods suggested above total a MINIMUM of 20 minutes, a period totalling 21 minutes cannot be considered an unreasonable amount of time for an observation period when arriving and a grace period whilst departing the car park.

 

8.       On-site signage is inadequate

 

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.

 

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

 

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

 

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

 

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:

 

[LINK]

 

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.

 

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

 

[LINK]

 

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.

 

The letters seem to be no larger than .40 font size going by this guide:

 

[LINK]

 

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

 

[LINK]

 

''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.''

 

...and the same chart is reproduced here:

 

[LINK]

 

''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:

 

[LINK]

 

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.

 

KeithP

In your point 1 you mention a 'very recent' PoPLA decision and go on to mention the date it was made.
I wouldn't call 29/09/2016 very recent.

Coupon-mad

I agree.  Apart from that, all good.

FrozenFishfingers

Thanks both, really appreciate the help!

I'll amend that section and keep you updated as things progress with POPLA