ParkingEye

Umkomaas wrote: »

A totally moot point which POPLA will completely ignore.

Hi Umkomaas, which bit is moot, the planning permission argument generally, or the requirement on private land, or both? Several template appeals have had this point in it so I thought it should be included...

Coupon-mad wrote: »

Forget that entire argument. It is not one of the template POPLA points in post #3 of the NEWBIES thread for good reason (if it is there tell me and I will delete it right now).

Do not include it.

Hi Coupon-mad,

I'm confused now, that argument is featured in many of the appeals posted here for review, including one linked in the newbies thread (although to be fair that was cited as an example of the grace period argument). If I'm to include only arguments listed in the newbies thread that apply, that would leave me with:

Grace Period
Signage
Landowner authority

Is that sufficient? That doesn't feel like the 'kitchen sink' approach I've seen mentioned, and nor have I seen many examples with so few points. Many of the posted appeals contain points such as ANPR compliance, ANPR reliability, planning permission.

Apologies if I'm totally misunderstanding, I'm just trying to get my head around the best way to do this as it feels like some of the guidance is conflicting.

Coupon-mad wrote: »

Are you saying that you have proof that the ANPR camera images are several minutes wrong? Tell POPLA that the operator appears to have exaggerated the time on site, or used unsynchronised timers for the in/out ANPR cameras because GSV proves that the car was only there for around 10 minutes (and Google Maps follow a phone's location in real time) yet the ANPR images have made up another 3 minutes and this is proof of error by the operator's system.

I would have thought a few minutes would be a reasonable margin of error between the two systems and that the Google information is better suited to proving the vehicle moved on and parked elsewhere?

Thanks again for your help, I really do appreciate it. I just want to nail this, and ParkingEye!

OK, before I go too far down the wrong road with all the content, how is this for the structure and argument points?

1. Grace Period
a. BPA CoP (updated for 2018)
b. Signs at entrance not obvious as to parking conditions, much smaller than the direction signs you are more likely to observe
c. Busy summer’s day, took time to locate parking spaces, disembark, locate and read signs, discuss between both parties (there were two vehicles), get toddler safely restrained in car seat again, and navigate a busy car park to the exit

2. Alternative parking then sought
a. Further evidence contract not accepted
b. Google timeline
c. Transaction evidence from alternative location

3. POFA compliance
a. No ‘period of parking’, only entry/exit and ‘time of stay’
b. ANPR exit image is at a busy road junction, vehicle could be waiting at that position, no evidence on when the image was captured

4. Keeper liability
a. Template version

5. Landowner authority
a. Template version

6. ANPR system reliability
a. Refer again to Google timeline

OK, first draft. Excluding the ANPR reliability point for now (not sure it is strong enough). All feedback welcomed and appreciated.

1. Grace period
A ‘total time in car park’ of only XX minutes should be considered to be within the limits of a reasonable grace period.
The British Parking Association’s Code of Practice (version 7, January 2018) section 13 concerns the application of grace periods by car park operators. In cases such as this, where there was no agreed contract, paragraph 13.1 is highly relevant and states that:
“If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’ with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”
BPA’s Code of Practice (version 7 January 2018) paragraph 13.1

It is reasonable to consider then, that a driver should be afforded both:
1. Time to park, locate and consider the offer made by the car park operator and, if deciding to reject the offer,
2. A grace period in which to leave.

Paragraph 13.1 leaves ‘reasonable grace period’ undefined, but we can find guidance on what could be considered a ‘reasonable grace period’ in the subsequent paragraphs 13.2 and 13.4 (emphasis added):
“If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”
BPA’s Code of Practice (version 7 January 2018) paragraph 13.2


“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.”
BPA’s Code of Practice (version 7 January 2018) paragraph 13.4

Both paragraphs 13.2 and 13.4 clearly stipulate a grace period should be a ‘minimum of 10 minutes’. Whilst paragraph 13.4 applies in cases where a parking contract has ended (in contrast there was no contract in this case), it is reasonable to suggest that the ‘minimum of 10 minutes’ is also a ‘reasonable grace period’ to apply to paragraph 13.1.
The grace period should be a minimum of 10 minutes so it is argued that a total ‘time in car park’ of XX minutes, as in this case, is within the limits of a reasonable grace period given:
a. How busy the car park was – it was midday in August at a busy tourist attraction and therefore took longer than normally expected to locate a vacant parking space.
b. The signage communicating the terms and conditions – the full details of the offer made by the car park operator include a solid block of text that is difficult to read and takes time to understand.
c. The occupants – a toddler travelling in the vehicle had to be safely restrained in their car seat before departure. Any parent will attest to this being an unpredictable and frequently lengthy process.
d. The ‘time in car park’ is calculated as the difference between the ‘arrival’ time and ‘departure’ time as captured by the Automatic Number Plate Recognition camera located at the entrance/exit. Vehicles exiting the car park must join a main road and do so while in the field of view of the camera. It cannot be shown when during any period of waiting the ‘departure’ time is recorded.

Considering factors such as these, Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) posits that there can be ‘no time limit’ to the act of locating, considering and ultimately rejecting the terms of the contract:

“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.”
“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.”

Pertinent factors in this case that give rise to variability among car park users, including, but not limited to the time taken to:
• Understand and follow direction signage
• Locate a parking space
• Locate a sign disclosing full terms and conditions
• Read the full terms and conditions
• Consider the terms and conditions and decide to accept or reject those terms
• Upon rejection of the terms and conditions, prepare the vehicle and its occupants for departure. In this case this involved securing a stubborn infant in their car seat.
• Exit the parking space, transit through the car park and exit safely


2. No contract entered into
The terms of the offer were not accepted and an alternative location was sought.
After reviewing the terms and conditions of the contract offered by the car park operator, the driver of the vehicle signalled their rejection of those terms, through their conduct by leaving the car park. Without acceptance of the contract, there can be no breach that gives rise to liability for a parking charge.
The driver then sought an alternative parking location where the terms were accepted and payment of the correct tariff was made. This can be seen in the location data captured by a mobile phone belonging to an occupant of the vehicle that clearly shows:
1. The car park cited in the parking charge notice was visited from XXXX-XXXX (X minutes, not the XX minutes claimed by the operator)
2. The vehicle travelled to an alternative location
3. The vehicle was parked at the alternative location from XXXX-XXXX

Include Google timeline
Include receipts from alternative location

In November 2017, a similar appeal to POPLA (Appellant versus ParkingEye – Tower Road, Newquay) was successful on the grounds that the assessor believed “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”

3. No evidence of period parked
The parking charge notice does not meet the requirements of the Protection of Freedoms Act 2012, Schedule 4.

The Protection of Freedoms Act 2012 Schedule 4 grants the right to a car park operator to recover unpaid parking charges from the keeper of a vehicle only if the conditions of the schedule are met.
Relevant to this case is the second condition that the operator has given notice in accordance with paragraph 6 and, in this case where a notice to driver was not issued, paragraph 9.
Protection of Freedoms Act 2012 Schedule 4 paragraph 9(1):
“A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following conditions are met.”

Protection of Freedoms Act 2012 Schedule 4 paragraph 9(2):
“The notice must-”

Protection of Freedoms Act 2012 Schedule 4 paragraph 9(2)(a):
“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”


The parking charge notice received from ParkingEye, dated XXXXXXXXXX, specifies the vehicle and the relevant land but fails to specify the period of parking and therefore does not meet the requirement of paragraph 9(2)(a). Instead, the notice states only ‘Time in car park’, calculated as the difference between the arrival time and the departure time captured by the Automatic Number Plate Recognition camera located at the car park entrance and exit.
‘Time in car park’ cannot be substituted for the ‘period of parking’ that is required by paragraph 9(2)(a) as:
1. There is no evidence of the duration that the vehicle was parked in contrast with the time spent driving into, around and out of the site. Navigating the site to locate and subsequently wait for a parking space cannot be considered components of the ‘period of parking’.
2. The ‘departure’ time is recorded at the junction of the car park exit and a main road. There is no evidence of the duration that the vehicle was required to wait in the field of view of the camera before a safe exit to the road could be made. Therefore, it cannot be shown if the time reported as ‘departure’ time was the time at the beginning or the end of the period of waiting to safely join the main road.


4. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid notice given in accordance with paragraphs 6 and 9 of the Protection of Freedoms Act 2012 Schedule 4.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4 of the Protection of Freedoms Act 2012. This applies regardless of when the first appeal was made and regardless of whether a purported 'notice to keeper' was served or not, because the fact remains I am only appealing as the keeper and only full and strict compliance with Schedule 4 of the Protection of Freedoms Act 2012 (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with Schedule 4 of the Protection of Freedoms Act 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {Protection of Freedoms Act 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from me as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the Protection of Freedoms Act.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

5. 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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

Thanks CM. Yeah the Google timeline shows <10 minutes, their PCN claims just under 15. In the context of the appeal to POPLA, do you recommend I go with the inconsistent timings as the first point, under the heading of ANPR reliability? Then in grace periods refer to how both timings fall within a reasonable grace period? If POPLA are happy to accept Google timeline as solid reliable evidence then I'll go for that as the headline. I intend to embed a screenshot of the timeline data showing on a map the locations visited with their durations. It shows <10 minutes at that location before moving to another car park where it stayed for several hours.

Does the complaint to the ICO/BigBrotherWatch have any bearing on the POPLA appeal or can that be done later? I need to submit the POPLA appeal this week.