Parkingeye exceeded paid for time limit

Thanks Coupon-mad, I think I understand the method now, at the POPLA stage you are effectively throwing them an armful of contest points with the aim that they are unable or choose not to counter them. Resulting in them either giving up for an easier target or poking holes in their own case.

There is mention of POFA and 29 days on the ticket.

Cheers

Hello again,

I've used the template BPA appeal as advised and recently got a POPLA code from PE. I've been having a read of some of the POPLA templates and put the following together based on the advice to be as verbose as possible. Could anyone please have a look and let me know if theres anything I should add/change? For what its worth I made a trip back to the car park recently and took some pictures of the signage. I have removed or edited links as the filter doesn't like me posting them.

Is there any mileage in the fact that the sign on the entrance is quite high up and not that big i.e not sure you could read from a car? There is also nothing about the PCN amount on the payment screen. PE to date have not provided any photos other than the entering and leaving on the ANPR

Thank you in advance for any advice

imageshack[.]com/a/img922/1619/KMqs3M.jpg
imageshack[.]com/a/img923/5376/YI8ruF.jpg

POPLA Ref No.xxxxxxxx
I am the registered keeper and I wish to appeal a recent parking charge from Parking Eye Ltd due to the following point. The charge is levied despite the driver not being identified.

1. Insufficient signage.

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.

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



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:



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



''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:


''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.

2. No evidence of Landowner Authority

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.Unreliable ANPR system

Also Parking Eye have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed
when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Parking Eye has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.

Thanks CM, I'll omit that part. After some digging I have today an email from my local planning department at the council confirming that the signs at the car park do not have any planning or advertisement permission and it would appear there is no permission for the ANPR camera poles either.

I found reference to a couple of court cases being discontinued by PE on Parking Prankster based on there being no planning permission. I will chuck this into the kitchen sink Popla appeal but owndered if anyone had any experience of how strong a defence this?

On the llus side the council are taking some enforcement action against some giant drape parking adverts included in my pictures

Hello Again,
ParkingEye have uploaded their evidence bundle to my POPLA case and I wondered if anyone could please check if I should add anything else to my rebuttal before I submit it?
At a high level my appeal consisted of:

1. Insufficient signage (including photographs and why the signs were insufficient)
2. Insignificant ANPR signage (including no mention of what the data captured will be used for)
3. No advertisement consent obtained for signage or ANPR poles (including statement from local council planning office that advertisement permission was not obtained and that it should have been)
4. No evidence of Landowner authority (including a requirement to produce unredacted copy of the contract and stated that witness statements are not acceptable)

PE have resonded with some shockingly poor photographs and site plan which has 1 sign in an incorrect location and 1 sign missing altogether. I’ve highlighted this in my rebuttal including photographs of where the signs are supposed to be but there is nothing there along with pointing out how poor the signage is in their own photographs.

Do I need to dispute their assertion of Fairlie v Fenton (1870) LR 5 Exch 169?

They have not provided the full contract and the witness statement they have provided looks to be from an active company but it states that ParkingEye have authority to issue parking charges from 31st February 2017 – 31st July 2017.

Can I use the fact that they have not provided the full contract, that the authority ends on the day of the parking event and that they are obviously living in LALA land if there are 31 days in February?

Its signed by a Chrisopher Grieves of Hallmark developments LTD on 22nd September, companies house shows them to be an active director of a similarly named company (hallmark developments northwest limited.

I’m also disputing their statement that:

21.1 – ParkingEye uses ANPR cameras in a reasonable, consistent and transparent manner. All signage contains the universally recognised symbol for the use of these cameras, and it is made clear that ANPR technology is in use on site.

As The symbol of a CCTV camera in not a universally recognised symbol for the USE of ANPR, rather the use of CCTV. Furthermore ParkingEye do not state what purposes that they will use the captured data for.

I’ve pasted PE’s reponse below minus all the photographs and witness statements.

Cheers

This site is a Paid Parking car park as clearly stated on the signage (enclosed). We have included a signage plan showing that there are signs situated at the entrance, exit and throughout the car park displaying the terms and conditions of the site.
The facility to pay by phone is also available at this site on the provision of the full, correct vehicle registration and payment card details.
Evidence G
System generated print out showing that insufficient time was purchased on the date of the event.
Please find enclosed a witness statement signed on behalf of the landowner showing that on the date of the parking event ParkingEye had authority to issue and pursue a Parking Charge to this vehicle.
Authority
ParkingEye can confirm that the above site is on private land, is not council owned and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent).
It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract.
Further Information
Grace period
ParkingEye operates a grace period on all sites which gives the motorist time to enter a car park, park, and establish whether or not they wish to be bound by the terms and conditions of parking.
There is a sufficient grace period in place at this site which is fully compliant with the BPA code of practice. All grace periods in place are a minimum of 10 minutes or more in line with the BPA Code of Practice.
ParkingEye ensures that all its signage is clear, ample, and in keeping with the British Parking Association (BPA) regulations.
The signage at this site demonstrates adequate colour contrast between the text and the backgrounds advised in the BPA Code of Practice, you will note the colour contrast at this site is black text on white background.
As the images show, the vehicle did not have its headlights on when entering the car park. We contend that there was clearly enough daylight for the motorist to be confident driving without the use of headlights, and therefore the signage would have been fully visible. (We enclose images of the signage in situ in the car park. We also include a signage plan to demonstrate the prevalence of the signs).
Please note, the contract between the Landowner and ParkingEye cannot be provided as evidence. This is due to the commercially sensitive information that the contracts hold.
The British Parking Association have confirmed that a signed witness statement is satisfactory evidence to demonstrate that a contract is in place between ParkingEye and the landowner. We believe that this Witness Statement is ample proof that the Operator is authorised to issue Parking Charge Notices where vehicles are parked on the site in a manner not permitted under the terms and conditions of parking (as per the British Parking Associations Code of Practice).
Initially, ParkingEye would like to state that we are a leading user of ANPR Technology. We ensure that our cameras, technology and processes are of the highest quality, and have built up this expertise with almost 10 years of experience of using ANPR cameras. We ensure that we use the best cameras, and that these are expertly configured.
We have also developed a robust process for handling the data and ensuring the accuracy of the system. ParkingEye is regularly required to provide data taken from these ANPR cameras for Police investigations. Once ParkingEye has installed the cameras, signage and other technology at a site, we will test the system extensively before Parking Charges are issued on site. This involves allowing the site to function normally without Parking Charges being issued, to ensure that the system is functioning correctly.
The British Parking Association Code of Practice contains guidelines for the use of ANPR cameras at Section 21. We comply fully with this;
21.1 – ParkingEye uses ANPR cameras in a reasonable, consistent and transparent manner. All signage contains the universally recognised symbol for the use of these cameras, and it is made clear that ANPR technology is in use on site.
21.2 – All data undergoes a multiple stage checking process, undertaken by trained ParkingEye staff to ensure that Parking Charges are issued correctly.
21.3 – All ANPR equipment is monitored and kept in good working order. A central team of trained Technical Support Engineers proactively monitor the performance of all systems to ensure the accuracy of data collected. Automated monitoring and alerting ensure potential issues are highlighted and dealt with quickly along with data management routines to ensure affected data does not result in a Parking Charge being issued. Dedicated mobile engineers respond to physical faults which require on-site resolution with testing periods to ensure equipment is configured and working to our high standards. Equipment is selected and deployed to ensure a reliable and robust solution which performs consistently and accurately.
Physical and logical access to data is restricted and processed securely. Full auditing of user access and actions ensures clear and full accountability. Dedicated server facilities are protected by named user access control systems.
ParkingEye has passed the relevant and most recent BPA audit.
21.4 – ParkingEye complies with all of the relevant guidelines including those set out by the ICO, DVLA and CO. 21.5 – The Notices to Keeper comply with Schedule 4 of the Protection of Freedoms Act 2012.
ParkingEye’s Automatic Number Plate Recognition (ANPR) cameras and software are fully compliant with the British Parking Association Code of Practice. We ensure that the cameras are checked regularly by both automated routines and Technical Support Engineers to ensure that they are in good working order, and that they are producing accurate data. We have passed both our British Parking Association and DVLA audits and follow all DVLA requirements concerning the data that we obtain.
Images recorded by the ANPR (Automatic Number Plate Recognition) systems are time-stamped at source. The ANPR servers use NTP to regularly verify the accuracy of the local time clock with any adjustments being logged thus ensuring that all images are captured and stamped with an accurate time and date. Network Time Protocol (NTP) is a widely used standard to accurately synchronise computer time over wide area networks. Institutions that use NTP technology include; HM Revenue & Customs, The Metropolitan Police, NASA, Inland Revenue, The Land Registry, RBS, NASDAQ, Buckingham Palace, GlaxoSmithKline, Deutsche Bank, BBC, NHS, BAE Systems, BT, HP, DELL and the Bank of England. We firmly believe that these time-stamped images are accurate.
Any time deviance detected on the ANPR servers generates an automatic alert monitored by the Technical Support Team at ParkingEye Head Office. If at any stage of the process the ANPR cameras are found to be deviating, Parking Charges are not issued. There are automated and manual checks to ensure that the cameras are accurate.
It is important to note that cameras and ANPR servers are directly attached as an integrated solution situated on-site therefore ensuring the accuracy of the ANPR read and associated date-timestamp. Transactional data and images are recorded locally before batch transfer to our central systems.
There is no evidence to suggest that a Parking Charge has been issued incorrectly, and ParkingEye goes to great lengths to ensure that all Parking Charges are issued correctly. The data taken from the Automatic Number Plate Recognition cameras is sent to ParkingEye, where it undergoes a checking process of up to 19 stages. This ensures that no errors have been made. There are various other procedures in place to ensure that Parking Charges are issued correctly, and there is no reason to believe that an error has occurred in this case.