Parking Eye - POPLA appeal, St James Retail Park Northampton

Thanks all for your responses so far.


Coupon Mad I have read your post about grace periods and included these in my appeal. I have also found some images of PE signs from a different car park, but they state 3 HOUR MAX STAY, not PARKING TIME. Is it still worth me including these in the inadequate signage section?


My draft POPLA appeal is below, I welcome your feedback;




Dear POPLA,


As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds: I am writing as the registered keeper of vehicle XXXX XXX to lodge a formal appeal against the PCN issued by Private Eye on the XX 2019 for the alleged breach of parking conditions at the St James Retail Park, Northampton car park on the XXth XXXX 2019.

I contend that I am not liable for the parking charge on the grounds listed below and kindly request that they are all considered.

1. No Grace Periods - breach of BPA CoP



2. ParkingEye has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)



3. No evidence of Landowner Authority - the Operator is put to strict proof of full compliance with the BPA Code of Practice





4. No evidence to show that the APNR system is reliable nor accurate.





5. Hidden signage and not seen so no contract could be entered into or formed.



6. No Planning Permission from Northampton City Council for Advertising Consent for signage

• No Grace Periods - breach of BPA CoP
  

The BPA’s Code of Practice states (13) that there are two grace periods: one at the end and a separate 'observation period' at the start. For the avoidance of doubt this is NOT a single period with a ceiling of just ten minutes, and the authority for this view is in this BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs where he states on behalf of the BPA that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:

link removed

“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. Our 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.”

BPA (18.5) states ''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''.

(a) On arrival - the 'observation period':
There was traffic build up on entering this car park, because it is single lane entry from a dual carriageway. The driver was unfamiliar with this site, so extra care and time was taken when entering the car park. There is also a restricted width of the car park spaces, causing difficulties in waiting for cars to manoeuvre to park or leave spaces, then the difficulties for the driver in the parking their own car.

I witnessed this as I was an occupant of the car (as well as the keeper). I can declare that it took 6 minutes before we were able to park, and at no time did we read any term that told us that the 'observation' time had actually started when we were in the queue and not even past the entrance threshold.

However, even if it had said that, observation and grace periods must still be considered given the facts relating to each site. 6 minutes is a rational grace/observation period to enter this car park, then queue behind the moving traffic, then carefully park, then finally seek out one of the ludicrously high new signs and read it, which is the only point at which any contractual parking licence may have started (only when the driver has had a fair opportunity to read the terms and decide whether to stay, as Kelvin Reynolds stated).

Notwithstanding the BPA rules, relevant contract law also dictates that consumers must be given an opportunity to consider terms and conditions before entering into a consumer contract, especially where one of the terms is unexpected (new terms for this site) and onerous. POPLA Assessors have stated in recent decisions that a reasonable time period for this would be up to about 10 minutes. In this case, therefore, the 6 minutes taken before being able to park and read the new signs at this particular site is a reasonable period.

(b) On leaving - the 'grace period'
BPA's Code of Practice (13.2) states: ''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 (13.4) reiterates this fact: ''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.''

Given the timings shown by the images (and subtracting the reasonable time explained above, on arrival) the Operator is alleging that the driver exceeded the parking time after the end of the parking event, by 10 minutes. This is explained by the narrow lanes and parking spaces, meaning that even when a driver gets back to their car on time, they are prevented from leaving immediately due to the queues and restricted space in this site. As I was an occupant of the car I can attest that this was the case on the material date and that the driver did not actually park in a space for more than 180 minutes, thus there was no parking contravention at all.

The Operator has displayed on their PCN only the arrival and departure times from the car park. These are not the 'period of parking' although the law requires this to be stated, and to any right-thinking person the only reason for this is to engineer an 'outrageous scam' (Hansard 2.2.18 - the views of MPs during the Parking CoP Bill reading) by misleading POPLA. Considering the travel time to a parking space and travelling back out of the car park the period of parking here falls comfortably within the mandatory observation and grace periods as outlined above.

As such, 10 minutes is a reasonable grace period to exit the car park after the parking contract has ended. The parking operator has issued the parking charge notice incorrectly. Accordingly, POPLA must allow this appeal.





2. ParkingEye has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)


In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Operator 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.
Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant 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 Notice To Keeper (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 perator 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 ParkingEye 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 me 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 put to strict proof of full compliance with the BPA Code of Practice


It is suggested that The Operator does not have proprietary interest in the land and merely acting as agents for the owner/occupier. I ask that The Operator be asked to provide proof they have the authorisation at this location in the form of a signed and dated contract with the landowner which specifically grants them the standing to make contracts with drivers and keepers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put ParkingEyeto 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

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 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.


Operator to provide strict proof of full compliance:

Not forgetting evidence of the various signatories are:

name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal document
TBC...

My new draft POPLA appeal with the points above removed as per Umkomaas advice, and pasted from Notepad


Dear POPLA,
As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds: I am writing as the registered keeper of vehicle XXXX XXX to lodge a formal appeal against the PCN issued by Private Eye on the XX 2019 for the alleged breach of parking conditions at the St James Retail Park, Northampton car park on the XXth XXXX 2019.
I contend that I am not liable for the parking charge on the grounds listed below and kindly request that they are all considered.
1. No Grace Periods - breach of BPA CoP
2. No evidence of Landowner Authority - the Operator is put to strict proof of full compliance with the BPA Code of Practice
3. Hidden signage and not seen so no contract could be entered into or formed.

1. No Grace Periods - breach of BPA CoP
The BPA’s Code of Practice states (13) that there are two grace periods: one at the end and a separate 'observation period' at the start. For the avoidance of doubt this is NOT a single period with a ceiling of just ten minutes, and the authority for this view is in this BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs where he states on behalf of the BPA that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:


Link removed


“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. Our 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.”
BPA (18.5) states ''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''.
(a) On arrival - the 'observation period':
There was traffic build up on entering this car park, because it is single lane entry from a dual carriageway. The driver was unfamiliar with this site, so extra care and time was taken when entering the car park. There is also a restricted width of the car park spaces, causing difficulties in waiting for cars to manoeuvre to park or leave spaces, then the difficulties for the driver in the parking their own car.
I witnessed this as I was an occupant of the car (as well as the keeper). I can declare that it took 6 minutes before we were able to park, and at no time did we read any term that told us that the 'observation' time had actually started when we were in the queue and not even past the entrance threshold.
However, even if it had said that, observation and grace periods must still be considered given the facts relating to each site. 6 minutes is a rational grace/observation period to enter this car park, then queue behind the moving traffic, then carefully park, then finally seek out one of the ludicrously high new signs and read it, which is the only point at which any contractual parking licence may have started (only when the driver has had a fair opportunity to read the terms and decide whether to stay, as Kelvin Reynolds stated).
Notwithstanding the BPA rules, relevant contract law also dictates that consumers must be given an opportunity to consider terms and conditions before entering into a consumer contract, especially where one of the terms is unexpected (new terms for this site) and onerous. POPLA Assessors have stated in recent decisions that a reasonable time period for this would be up to about 10 minutes. In this case, therefore, the 6 minutes taken before being able to park and read the new signs at this particular site is a reasonable period.
(b) On leaving - the 'grace period'
BPA's Code of Practice (13.2) states: ''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 (13.4) reiterates this fact: ''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.''
Given the timings shown by the images (and subtracting the reasonable time explained above, on arrival) the Operator is alleging that the driver exceeded the parking time after the end of the parking event, by 10 minutes. This is explained by the narrow lanes and parking spaces, meaning that even when a driver gets back to their car on time, they are prevented from leaving immediately due to the queues and restricted space in this site. As I was an occupant of the car I can attest that this was the case on the material date and that the driver did not actually park in a space for more than 180 minutes, thus there was no parking contravention at all.
The Operator has displayed on their PCN only the arrival and departure times from the car park. These are not the 'period of parking' although the law requires this to be stated, and to any right-thinking person the only reason for this is to engineer an 'outrageous scam' (Hansard 2.2.18 - the views of MPs during the Parking CoP Bill reading) by misleading POPLA. Considering the travel time to a parking space and travelling back out of the car park the period of parking here falls comfortably within the mandatory observation and grace periods as outlined above.
As such, 10 minutes is a reasonable grace period to exit the car park after the parking contract has ended. The parking operator has issued the parking charge notice incorrectly. Accordingly, POPLA must allow this appeal.


2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
It is suggested that The Operator does not have proprietary interest in the land and merely acting as agents for the owner/occupier. I ask that The Operator be asked to provide proof they have the authorisation at this location in the form of a signed and dated contract with the landowner which specifically grants them the standing to make contracts with drivers and keepers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put ParkingEye 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
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 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.
Operator to provide strict proof of full compliance:
Not forgetting evidence of the various signatories are:
name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal document



3. Hidden signage and not seen so no contract could be entered into or formed.

Signs in this car park are not prominent, clear or legible from all parking spaces. It is submitted that the driver did not have a fair opportunity to read any terms and conditions. The signage was not expected and 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 (see Fig. 1). In addition, the Operator’s signs would not be clearly visible from some parking spaces. The terms appear to be displayed inadequately in letters less than half an inch high. I put the Operator to strict proof as to the size of the wording on their signs. As further evidence that this is inadequate notice, with Letter Height Visibility and perspective 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 and Conditions. The signs are sporadically placed and obscured in some areas and hidden by large vehicles parked.
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 and expressed in plain and intelligible language and is legible.
A letter height of less than half an inch showing the terms and the 'charge' and placed high on a pole and in crowded small print is inadequate in an outdoor car park.
Where terms on a sign are not seen and not clearly marked 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.
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.
The signs relating to 'Terms and Conditions' have to be read while travelling into the site so makes their placement completely unacceptable.
They are unremarkably not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility (see Fig 2).
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. The judgement was binding case law from the Appeal Court and supports my argument
This was a victory for the motorist and so where terms on a sign are not seen and the area 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.