ParkingEye - Aire Street Leeds POPLA Decision - Rejected - Next Steps

POPLA Verification Code: XXXXXXX
Vehicle Registration: XXXXXX
I, the registered keeper of this vehicle, received a letter dated 10/03/2018 acting as a notice to the registered keeper. My appeal to the Operator – ParkingEye – was submitted and acknowledged by the Operator on 16/03/2018 and rejected via an email dated 27/03/2018. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:
1. GRACE PERIOD: BPA CODE OF PRACTICE – NON-COMPLIANCE
2. THE OPERATOR HAS NOT SHOWN THAT THE INDIVIDUAL WHO IT IS PURSUING IS IN FACT THE DRIVER WHO
WAS LIABLE FOR THE CHARGE
3. NO EVIDENCE OF LANDOWNER AUTHORITY - THE OPERATOR IS TO PUT STRICT PROOF OF FULL COMPLIANCE
WITH THE BPA CODE OF PRACTICE
4. NO EVIDENCE OF PERIOD PARKED – NTK DOES NOT MEET POFA 2012 REQUIREMENTS
5. VEHICLE IMAGES CONTAINED IN PCN: BPA CODE OF PRACTICE – NON-COMPLIANCE
6. THE ANPR SYSTEM IS NEITHER RELIABLE NOR ACCURATE



1. Grace Period: BPA Code of Practice – Non-Compliance
The BPA’s Code of Practice states (13) that there are two grace periods: one at
the end (of a minimum of 10 minutes) and one at the start.
BPA’s Code of Practice (13.1) states that:
“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.”
BPA’s Code of Practice (13.2) states that:
“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.”
BPA’s Code of Practice (13.4) states that:
“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 (18.5) states that:
“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.”
The BPA Code of Practice (13.4) clearly states that the Grace Period to leave
the car park should be a minimum of 10 minutes. Therefore it is reasonable to
suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also
a “reasonable grace period” to apply to 13.1, 13.2 and 18.5 of the BPA’s Code of
Practice.
Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking
Association (BPA):
“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, no limited to disability.”
Finally, some 3 years ago years ago, on 30th July 2015, the minutes of the Professional
Development & Standards Board meeting show that it was formally agreed by the Board (of BPA
members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA
Code of Practice to read 'a minimum of eleven minutes':
“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”
The recommendation reads:
“Reword Clause 13.4 to ‘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 11 minutes.”
(Source:britishparking.co.uk/write/Documents/Meeting%20Notes/
Governan ce/20150730_PDandS_Board_Action_Notes.pdf)
This shows that the intention of stating vaguely: 'a minimum of ten minutes' in the current BPA CoP (not a maximum - a minimum requirement) means to any reasonable interpretation that seconds are de minimis and therefore not taken into account.
If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate (and read) terms and conditions (in this case in the dark with no lighting), decide whether to enter into a contract and in this case download and sign up to a mobile parking app.
It is therefore argued that the duration of visit in question (which ParkingEye claim was 1 hour 15 minutes 21 seconds) does not take into account a reasonable grace period, given:
a) The site is not well lit and relies on nearby street lighting as its primary source. of lighting.
b) Visibility was hindered further as the site was in darkness at time of the visit – 16:49:59 to 18:05:20 (01:15;21).
c) The lack of sufficient signage throughout the car park in question (noncompliance with BPA Code of Practice 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.
d) The failure to light signage adequately so as to make signs visible from all parking spaces (which they are not, especially at night time) and legible once located.
All factors discussed above serve merely to increase the time taken to:
• Locate a sign containing the terms and conditions.
• Read the full terms and conditions in the darkness.
• Decipher the confusing information being presented.
• Decide to park and therefore enter into a contract.
• Download and sign up for their parking app.
• Enter card payment details in the dark.
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
In cases with a keeper appellant, yet no POFA '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. I am the keeper throughout (as I am entitled to be), and 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 NTK.
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. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (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 the POFA 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 {POFA 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 myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.
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.''
3. No Evidence of Landowner Authority - the operator is to put 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 Code of Practice) 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 Code of Practice 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.
4. No Evidence of Period Parked – NtK does not meet PoFA 2012
requirements
Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract. Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to: “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;” ParkingEye's’ NtK simply claims “the vehicle was parked at Aire Street, Leeds” The NtK separately states that the vehicle “Arrived at Aire Street at 16:49:59 and departed at 18:05:20”. At no stage do ParkingEye explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012. It is not in the gift of ParkingEye to substitute "entry/exit" or "length of stay" in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result. By virtue of the nature of an ANPR system recording only entry and exit times, ParkingEye are not able to definitively state the period of parking. I require ParkingEye to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.
5. Vehicle Images contained in PCN: BPA Code of Practice – Non-compliance The BPA Code of Practice point 20.5a stipulates that:
"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."
The PCN in question contains two close-up images of the vehicle. Neither image clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all). One image is so dark that the outline of the car cannot even be distinguished.
6. The ANPR System is Neither Reliable nor Accurate
The ParkingEye Notice to Keeper (NtK) shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question.
The Notice to Keeper states: On 06/03/2018 the vehicle: XXXXXX entered Aire Street – Leeds, at 16:49:59 and departed at 18:05:20 on 06/03/18. These times do not equate to any single evidenced period of parking. By ParkingEye's own admission on their NtK, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed.
Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states;
“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.” Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order.
I require ParkingEye to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.
As ‘grace periods’ (specifically the time taken to locate any signs, observe the signs, comprehend the terms and conditions, decide whether or not to purchase a ticket and either pay or leave) are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle number plate allegedly entering and leaving the car park at specific times (1 hour 15 minutes and 21 seconds apart), it is vital that ParkingEye produces the evidence
requested in the previous paragraph.

Didn't contest any of my points. They just stated they did have landowner authority and then spend 20 pages focussing on the signage!

ParkingEye has clearly failed to address the numerous points pointed out in my POPLA appeal.

Grace Periods:
The BPA’s Code of Practice states (13) that there are two grace periods: one at
the end (of a minimum of 10 minutes) and one at the start. This as I pointed out in my appeal has been extended to 11 minutes and is applicable at the start AND end of any stay.


ParkingEye has not produced an unredacted copy of the contract with the landowner as requested. They cannot just be taken on their word that this exists. This matter for the reasons laid out in my appeal.



ParkingEye has no provided evidence of the “period of parking” as stipulated by the BPA code of practice. Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to: “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;” The NtK states that the vehicle “Arrived at Aire Street at 16:49:59 and departed at 18:05:20”. At no stage do ParkingEye explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012. It is not in the gift of ParkingEye to substitute "entry/exit" or "length of stay" in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.

My arguments had nothing to do with signage and therefore I am unsure why ParkingEye saw fit to point out their small and inadequate signage in their evidence pack.

DecisionUnsuccessful
Assessor Name : Alexandra Roby
Assessor summary of operator case
The operator’s case is that the motorist did not purchase the appropriate parking time.

Assessor summary of your case
The appellant’s case is that the operator has not shown that the individual who it is pursuing is in fact the driver, who is liable for the charge. He states that the signage is small, unlit and poorly located. The appellant has advised that he has provided POPLA with a document containing his grounds of appeal, however no such document has been provided.

Assessor supporting rational for decision
The terms and conditions of the site state: “Parking tariffs apply. Weekday: Mon-Fri 8am-6pm: Up to 1 hour…£2.00. Up to 2 hours…£3.00. You can purchase additional time (if required) at the payment machines or by phone before leaving. Failure to comply with the terms & conditions will result in a Parking Charge of: £100”. The operator has issued the Parking Charge Notice (PCN) as the motorist did not purchase the appropriate parking time. Images from the operator’s Automatic Number Plate Recognition (ANPR) system have been provided, which show that the appellant’s vehicle entered the car park at 16:49 and exited at 18:05 on the day in question, staying for a total of one hour and 15 minutes. A system generated print out has also been provided, showing that the motorist only made sufficient payment to entitle the vehicle to park at the site for one hour. The appellant’s case is that the operator has not shown that the individual who it is pursuing is in fact the driver, who is liable for the charge. In this case, it is not clear who the driver of the vehicle in question is, so I must consider the provisions of the Protection of Freedoms Act 2012 as the operator has issued the PCN to the keeper of the vehicle. The operator has provided a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of the Protection of Freedoms Act 2012 and I am satisfied that it is compliant, and that the operator has successfully transferred liability to the keeper of the vehicle. The appellant states that the signage is small, unlit and poorly located. When parking on private land, the motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. Therefore upon entry to the car park, it is the duty of the motorist to review and comply with the terms and conditions when deciding to park. I refer to Section 18.3 of the British Parking Association Code of Practice, which states: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle… signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. The operator has provided photographic evidence of the signage at the site, along with a site map demonstrating the distribution of the signs throughout the site. Upon review of this, I am satisfied that the signage is sufficient to bring the site’s terms and conditions to the attention of motorists and consider that the motorist was presented with a reasonable opportunity to review them before deciding whether to park. Furthermore, as the motorist did actually purchase a ticket, I consider that they were already aware of the terms and conditions. Additionally, I do not consider it necessary to address the issue of signage in the dark as it is evident from the ANPR images that it was daylight when the motorist parked. Ultimately, it is a motorist’s responsibility to ensure they adhere to the terms and conditions of a site when parking on it. As the motorist did not purchase the appropriate parking time, they have failed to comply. As such, I conclude that the PCN was issued correctly. Accordingly, I must refuse this appea