PE 10mins overstay on 30mins max stay!!!

Coupon-mad wrote: »

Good, and luckily for you there are POPLA template points in the NEWBIES thread third post, to put together. Show us.

If this were me though, I would fill in the simple form on ParkingEye's Privacy page right now, this week (no delaying) and require their Data Protection Officer to provide all the raw images taken by the exit camera that include your car/VRN in shot, because there was a delay caused by a delivery lorry and you need to see all the images that you understand are captured about once a second.

Tell them this is a SAR (subject access request) and to email the images that contain your car/VRN at the exit, and these must be uncropped and not re-touched or altered except to only redact any other vehicle's VRN or faces/similar identifying images of passing individuals.

Don't write the above as another appeal, it;s exactly what I said, a SAR, a request for all photo data.

Will do it. Thanks for tip :beer:

Here is what I plan to submit. I would be grateful if you could let me know if this is ok please?





1)Grace periods unclear and not properly applied.
2) Initial appeal refused as a matter of course without any substantive effort to reply.
3) Misleading and unclear signage.
4) No landowner authority nor legal standing to form contracts or charge drivers.
5) Photo evidence appears doctored.
6) Amount demanded is a penalty.
7) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.


1) Grace periods

The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.

The CoP states:

“13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go...”
“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.”

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:


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 BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.




The observation period (at the start)

The ANPR photos on the PCN show an arrival time of 09:56 and a departure time of 10:37 – an alleged overstay of 10 minutes. The BPA (Kelvin Reynolds is the Director of Policy & Public Affairs) is on record as shown above, as saying that the 'observation period' at the start might take one person five minutes, but another person 10 minutes, depending on various factors”.

The Harlow Exchange Car park is a busy location which appears to have a train station, popular fitness gym, barbers, hotel and Toby Carvery restaurant, multi storey car park and it is located near the town. Given the time and the popular nature of the location it is not inconceivable that the car park would be very busy.

The alleged overstay, given Kelvin Reynolds' defined 'observation time' and the type of businesses at the location is certainly possible. Time would have been taken just driving in, no doubt in a queue, dodging groups of pedestrians carrying delivery and also waiting for other cars turning and reversing to park or leave, before reaching an empty bay then parking. After that, an average driver must unstrap any children, buggy, bags, then go to the display machine, read the terms and conditions.

There was nothing about £100 on the machines and the wording was almost illegible

The grace period (at the end)

The evidence provided (and refer to the comments relating to doctored photographs and unknown camera locations), purports to show that the vehicle arrived at 09:56, and left at 10:37 on the same day.
The same arguments relating to difficulty in arriving are made as to the difficulty of leaving the car park at the end of any stay.

Given that no evidence has been provided as to the trustworthiness of the timing system used to generate the date stamps attached to the photographs (please also see points relating to both these issues below) 10 minutes in total. Driver exit a car park due to the surrounding roads being busy (obstruction - delivery van and big lorry reversing into car park blocked the way out for in about 10 minutes) and is perfectly within scope of both the MINIMUM grace periods & any potential error in time recording.

Taking both BPA 'Observation' and 'Grace' Periods into account, considering the type and location of this busy car park and unreliability of timestamped evidence on the photographs supplied, I contend that the PCN was not properly given.



2) Initial appeal refused as a matter of course without any substantive effort to reply

The initial appeal lodged with ParkingEye included a request for information, including a geographical address, about the landowner or business on the site in order to lodge a complaint.
As part of the appeal response, and the appeal response itself appears to be a pro-forma refusal. Were the ParkingEye appeal process anything other than a process by which to appear compliant with BPA guidelines then that information would have been provided in good faith as a matter of course. The fact that it has not been provided indicates that the ParkingEye appeal process is perfunctory and essentially useless.




3) Misleading and unclear signage

The alleged breach, according to Parking Eye, is in contravention of terms and conditions “clearly displayed at the entrance to and throughout the car park”. It would however appear from perusing Google Earth images (the only option available to the appellant at time of appeal) that the one single small sign at the entrance could not be read fully and properly without stopping.

The picture of the sign at the entrance, collected from Google Earth, shows a small sign:
The signs and the machine tariff board were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:
68 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.

It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:



The terms appear to be displayed inadequately at the machine, where only the tariffs are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size. As evidence that this is inadequate notice, Letter Height Visibility is discussed here:



''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. However, if you…want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:-


''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''. ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'.

I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. 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.

Separately, I can find no trace of a decided planning application relating to the Harlow Exchange 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.

In addition, 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 a point in time on the road outside/at the site boundary. 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' for the purpose of generating profit from PCNs.

In fact, any reasonable driver would believe that they are authorised to park and rely on their own timekeeping. In circumstances where the terms of a notice are not negotiable (as with car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity in those terms, the rule of contra proferentem shall apply. This is confirmed within the Consumer Rights Act 2015 including:
Paragraph 68: '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'.

And Paragraph 69: 'Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings the meaning that is most favourable to the consumer is to prevail.'

The driver could never guess that they are responsible for taking into account a period that is somehow back-timed to include a secret timing when the clock started (unbeknown to drivers) from their arrival in moving traffic from the road. Are drivers here meant to be psychic and look at their watch as they drive off the road? If they are, then this must be transparently stated at the entrance and the machine clocks must be set to start a period of parking from arrival, by linking the systems.

Withholding material information from a consumer regarding the 'time when the clock starts ticking' and the commercial purpose of the ANPR cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':



Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—!
(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.’'



4) No landowner authority nor legal standing to form contracts or charge drivers


There is no landowner authority nor legal standing to form contracts or charge drivers. 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 un-redacted 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 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”


5) Photo evidence appears doctored.


I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge Parking Eye to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge Parking Eye that they possess the technology to generate these precise types of photographs, as the date stamps have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data). I would challenge ParkingEye to prove the photographs as provided to me are indeed genuine.



6) Amount demanded is a penalty

Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.


7) 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.

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 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 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 {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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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.”

Fruitcake wrote: »

Where is the "frustration of contract" point I suggested you use? This was the reason for the alleged overstay yet you haven't mentioned it at all.
Remember, this is either information provided to The Keeper by The Driver after the alleged event, or from The Keeper who was also An Occupant of the car at the material time. The latter is better since it can be used as fact if it gets to court.

Right, I have missed most important part. It's probably baby theething.... & luck of sleep.
How does that sounds to you:
I rely on the doctrine of Frustration of Contract in my defence. The contract was formed between the Claimant and the driver, in which the Claimant granted the consideration of free parking for 30 minutes, in return for a promise to leave within 30 minutes on the part of the driver. There was, in this case, a change in circumstances which was not the fault of either party, and which rendered it impossible for the driver to perform the contract.

Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943, but in this case there was no loss to the Claimant at the time the contract was breached, and so they have no valid claim for £100 or any amount at all. The case of Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126 provides authority for this.