11 minutes = £100? - Aire Street Leeds - Parking Eye

Hey Guys, I'm just in the process of writing my draft appeal to POPLA using their online system. I just thought I'd post it here as I'd appricate any advice as I'm finishing it for submission tomorrow. I have all the evidence stated.

The vehicle was not improperly parked

Please write a short summary of this ground of appeal

POPLA code: **********
Vehicle Registration: **** ***
On the **/**/****, I, the registered keeper of this vehicle recieved a letter dated **/**/****
acting as a notice to the registered keeper. I appealed to Parking Eye as the registered keeper and received an email denying my appeal dated **/**/****. I contend that, as the keeper, am not liable for the alleged parking charge and wish to appeal against it.

On the ** of **** 2017 the driver entered the Aire Street car park in Leeds at **:**, the driver parked the vehicle on the far side of the car park and travelled to the located pay point on the entrance side of the car park. The driver attempted to read the signage which they believed to be highly placed (I have attached evidence to this submission to support this).
After they attempted to read the poorly displayed signage they proceeded to pay, however after having an issue paying using cash as the machine would not accept the coinage they decided to pay by phone, they returned to the car, proceeded to download and sign-up on the operators mobile app, after numerous attempts to pay using the app that continued to crash and reject their card details they decided to leave the car park (taking into account the conditions and the environment of the car park which in the evidence shows a very uneven surface with major potholes unmarked bays and a section of land that is raised unabling any vehicle to pass resulting in driving extremely slow and cautiously) at **:** unable to pay due to a failed service provided by or in conjunction with Parking Eye which was out of their control, totalling 11 minutes spent within the car park.

I would therefore like to submit points to support this appeal and contend that I am not liable for the parking charge. I have researched the matter and taken legal advice.

Why do you perceive that the terms and conditions of the car park were not properly signed (for example where they blocked, too small, or not showing)?

I believe that the signage displayed was too small and too high up to be read correctly, as shown in the evidence attached.

“If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the 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.” (AOS Code of Practice (Oct, 2015 v6), Page 10 section 18.5.)

I would also like to cite this statement from Page 18 Section 28.8 which states that there should be a sign which is fully readable without leaving the vehicle, there are zero (0) signs within the vicinity of the car park that are placed at closer to eye level, or not obstructed by parked vehicles.

“there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle” (Page 18 Section 28.8)


I therefore believe that either I or the driver are not bound by the parking contract.

What did the signage at the car park say?

The signage at the car park are sporadically placed and obscured and hidden in some areas by other parked vehicles and are not immediately obvious due to the height of the sign and as parking terms and the working is mostly illegible. 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.

This case is similar to the signage in POPLA decision 5960956830 on 02/06/16, 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 the motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] in addition to 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.”

Why do you consider you complied with the signage?

As I stated in section two of this appeal, "they must have the chance to read the terms and conditions before they enter into the 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." The driver was unable to read the signage due to its placement and small lettering, therefore they was unable to contractually bind into the agreement for parking with the parking operator.

Why does the parking operator consider you to have failed to comply with the signage?

The parking operator has considered that they have failed to comply with the signage due to spending a total of 11 minutes within the car park while entering, attempting to read the signage, attempting to pay and then leaving the car park.


The amount requested on the parking charge notice is not correct.

Please write a short summary of this ground appeal.

The charge is a penalty and is not a genuine pre-estimate of loss.

The £100 charge that is asked for far exceeds the cost to the landowner from a total of 11 minutes, this time specified includes the grace period which is stated to allow drivers to enter the car park, decide whether to park or not (and in this case attempt to pay) and leave the car park “within a reasonable period that allows for the conditions and environment of that parking site” (Page 19, section 30.2) of which I have stated and provided evidence of the poorly maintained surface and blockages to route.

“13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.” (Page 9 section 13.)

For this charge to be justified a full breakdown of costs Parking Eye has suffered as a result of the car being parked at the car park is required and should add up-to the £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, admin, operating costs. parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.

I would also like to make a valid statement regarding the ParkingEye car park at Town Quay Southampton, of which POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''


Are there any other reasons why you perceive the amount to be incorrect?

I have stated above the grounds for why I perceive for the amount to be correct, taking into account the grace period, the time required to enter the car park, park the vehicle, walk to the pay point, attempt to read the signage, attempt to pay and leave “within a reasonable period that allows for the conditions and environment of that parking site” which I have stated

Extreme circumstances prevented me from parking correctly.

Please explain the extreme circumstances which prevented you from keeping to the terms and conditions of the car park.

I have stated in a previous section my grounds for the circumstances that have prevented me from my assumed incorrected parking with the perceived terms and conditions of the car park.

Other

Please explain your reasons for appealing against the parking ticket.

The car park in question does not have any marked out bays, leading to cars obstructing the path to navigate the said car park with cars being blocked in by other parked cars, resulting in the driver navigating around the car park, this, paired with the uneven and pot-hole riddled surface and a pile of rubble that disrupts the flow of the car park restricted the driver to leave within any less time that they did.

“If you provide parking facilities to the general public for a fee, your system must allow drivers who have not paid the fee to leave a site within a reasonable period that allows for the conditions and environment of that parking site. This grace period should be long enough to allow motorists to leave without having their vehicle registration mark processed for a parking charge.” (Page 19, section 30.2)

I've re-revised my POPLA appeal, thanks to coupon-mad who stated some obvious points that I should have been aware of. I'm still drafting this, any advice would be heavily appriciated .

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POPLA code: **********
Vehicle Registration: **** ***

On the **/**/****, I, the registered keeper of this vehicle recieved a letter dated **/**/****
acting as a notice to the registered keeper. I appealed to Parking Eye as the registered keeper and received an email denying my appeal dated **/**/****.

I contend that, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

Grace period not long enough for the driver perform actions required

The grace period allocated at this car park is inadequate and does not give the driver enough time to enter the car park, get out of the car, walk to the payment machine, read the signs attempt to pay and decide not to park and drive off.
As mentioned above, the driver attempted to pay using two payment methods, both of which failed. Quotes below are taken from the BPA Code of Practice October 2015 V6.

13.1 “Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”
13.2 “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 “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.”

For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read " observe the signage terms, before paying.

Kelvin Reynolds of the BPA says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this:

“britishparking -- co -- uk -- /News/ -- good-car-parking-practice-includes-grace-periods”





“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.”

The ANPR photos on the PCN show an arrival time of 16:40:28 and a departure time of 16:51:54 – an alleged duration of 11 minutes.

Secondly on the day of parking the condition and layout of the said car park disrupted the driver from being able to enter and leave the car park without difficulty as the car park does not have any marked out bays, leading to cars parking anywhere on the land obstructing the path to navigate the said car park, this resulted in the driver navigating around the car park for longer than necessary, this, paired with the uneven and pothole riddled surface, loose gravel, stones and a pile of rubble that disrupts the flow of the car park restricted the driver to safely enter and leave within any less time that they did.

“If you provide parking facilities to the general public for a fee, your system must allow drivers who have not paid the fee to leave a site within a reasonable period that allows for the conditions and environment of that parking site. This grace period should be long enough to allow motorists to leave without having their vehicle registration mark processed for a parking charge.” (Page 19, section 30.2)



Image showing the poor surface of the car park.

Image showing the poor surface of the car park

Image showing the rubble blocking the flow route around the car park.

The Aire Street Leeds Car park is a busy central location which is next to the central train station, the business district and many popular shops. Taking both BPA 'Observation' and 'Grace' Periods into account, considering the type and location of this busy car park, 11 minutes is perfectly within scope of both the MINIMUM grace periods taken together and so I contend that the PCN was not properly given.


2. The Notice to Keeper (NTK) was not compliant with the Protection of Freedoms Act 2012 (POFA) and as such no keeper liability can be established.

ParkingEye have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with schedule 4 paragraph 9 of the Protection of Freedoms Act 2012

The PCN fails to identify the facts that caused a charge to arise and fails to describe the unpaid parking charges that they allege were unpaid at the machine.

9(2)
’’The notice must -
inform the keeper that the driver is required to pay parking charges in respect of the
specified period of parking and that the parking charges have not been paid in full;

[c] describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;’’

This NTK stated that ‘’either’’ there was not appropriate parking time purchased ‘’or’’ the vehicle remained longer than permitted (neither of which are ‘facts’).
This NTK fails to describe those parking charges which they contend remain ‘unpaid’ by the driver.


3. Inappropriate use of ANPR technology

Paragraph 21.1 of the CoP advises operators that they may use ANPR camera technology to manage parking in private car parks, as long as they do this in a ''reasonable, consistent and transparent manner''. The CoP requires that signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

These signs do not comply with these requirements because the car park signage failed to notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from the moment the car entered the car park. It is not stated that the cameras are not for security (as one would expect from a mere camera icon) but are there in order to calculate 'total stay'.

4. The signage is inadequate and unclear

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

“If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the 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.” (AOS Code of Practice (Oct, 2015 v6), Page 10 section 18.5.)

Image showing parking sign

There should be a sign which is fully readable without leaving the vehicle, there are zero (0) signs within the vicinity of the car park that are placed at closer to eye level, and were not obstructed by parked vehicles.

“there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle” (Page 18 Section 28.8)

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 signage at the car park are sporadically placed and obscured and hidden in some areas by other parked vehicles and are not immediately obvious due to the height of the sign and 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.

Image showing the relative height of parking sign.

This case is similar to the signage in POPLA decision 5960956830 on 02/06/16, 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 the motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] in addition to 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.”


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 terms of 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.


Under Lord Denning's Red Hand Rule, the charge 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 driver was unable to read the signage due to its placement and small lettering, therefore they was unable to contractually bind into the agreement for parking with the parking operator.

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 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


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.

Separately, I can find no trace of a decided planning application relating to the Aire Street Leeds car park for the ParkingEye signage and cameras. Assuming that indeed no planning application was submitted or approved, then the signs hold no validity even were they properly sized, properly legible and properly placed.

Regards

Thanks Coupon-Mad. I appreciate your help and advice! I submitted my appeal just before your reply, hopefully I will hear a result and I will post on the outcome of the result.