DW Wigan - ParkingEye POPLA appeal / help please

PurpleSun · 5 October 2017 at 11:27PM

Hi all,

I am now at the POPLA appeal stage and I might need your expertise on the appeal I have drafted. Before that I would be grateful if you could tell me if my case is worth appealing. This is the background...

PCN was received on time and shows "protection of freedoms act" on the back.

The driver had paid and displayed (correct reg and ticket was kept) and this was not reflecting on the PCN but the appeal was rejected by ParkingEye as "insufficient time was paid". Driver genuinely thought that the car was ok to stay parked for up to 1 hour 30mn. Driver paid £2.50 and ticket which has been kept shows this. The driver paid that amount as display showed £2 for 1hour £3 for 2 hours to make sure that covered for more than 1 hour to be on the safe side. The machine accepted transaction and there was no mentioned of having to enter exact change or no change given. So driver was confident that sufficient time had been paid. The ticket itself is misleading as it shows "purchase time" and not "paid until" making it difficult to accurately know until what time car is safe to stay. Duration from entry to exit was 1 h 16 min but from actual time paid 1 h 13 min.

In your experience, do have ground for appeal?

I have read the NEWBIES thread and search for different examples regarding ParkingEye POPLA appeal and came up with.

Many thanks in advance

PurpleSun · 5 October 2017 at 11:38PM

I am writing to challenge a parking charge notice received for parking at DW Sports Wigan, Pay and Display car park on XX of September 2017. This car park is run by ParkingEye Ltd.

To protect the driver, they have not been named.

My appeal as the registered keeper is as follows:
1. Parking charge notice fails to show that ticket was purchased
2. Insufficient grace period
3. No evidence of Landowner Authority
4. Inadequate signage

1. Parking charge notice fails to show that ticket was purchased
PCN quotes “by either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted” but fails to clearly advise that a ticket was purchased at 10:49 from machine PEXXXX for a value of £2.50. Furthermore, in their appeal rejection letter, ParkingEye state that “insufficient time was paid for on the date of the parking event.”
The driver used the machine on site to make a genuine payment, entered full/correct registration and trusted the machine to accept or reject the transaction accordingly. As the machine accepted the payment of £2.50 (payment which would have been made by a combined number of coins and not a single coin transaction), the driver was confident to have made sufficient payment to remain on the car park for 1 hour 30 minutes. Please see attached evidence, photo of the machine PEXXXX detailing step to follow and not clearly stating that exact change to be entered and/or no change given, I have gathered as proof.
If prorated payments are not permitted, the driver would have expected the machine to either refuse issuance of parking ticket and to clearly advise to make sufficient payment of either £2.00 for 1 hour, £3.00 for 2 hours, £5.00 for 4 hours and £10.00 for 8 hours. Ticket issued on XX of September 2017 clearly shows payment taken and accepted of £2.50. If the driver was prompted to make different payment by the machine, the driver will have done so.
Ticket issued on the XX of September 2017 is also misleading in his wordings and refers to “purchase time” and not “paid until” which would make the driver aware of the exact time payment applied to and make additional payment if required. Payment was made in good faith and from previous experiences in using car parks, tickets showing paid until avoid any kind of confusions between the parking company and the driver. Please see attached a sample of an older ticket issued in September 2014 by ParkingEye showing an issued date/time and paid until/time/date.

2. No period of grace given for the driver to read the additional signs within the car park, or to exit the car park following the parking period.

The driver of the car at the time was captured by ANPR cameras driving in to the car park at 10:45:55 and driving out at 12:02:14 on the same date. There is no mention made of any ticket purchase on the PCN and ParkingEye have not acknowledged that a ticket was purchased at 10:49 for 1 hour 30 minutes parking, which expired at 12:19. In their appeal rejection letter, ParkingEye state that “insufficient time was paid for on the date of the parking event.”
The only information provided by logging on ParkingEye.co.uk is that “stay duration” 1 hours 16 minutes and “paid duration” 1 hours 0 minutes (£2.50).

If ParkingEye Ltd is claiming that only 1 hour has been paid and for which overpayment has been made and accepted by their machine then this matter appears to flow from an allegation of 'overstay' of a mere 16 minutes, despite the fact this is not an overstay at all and is unsupported by the BPA. The paid for parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which the parking ticket was purchased or at which it expired. The sign does not state that the contract starts on entry into the car park.

The BPA Code of Practice (13.2) states that parking operators "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." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park.

Kevin Reynolds, Head of Public Affairs and Policy at BPA states that:

‘There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

“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.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”’

In addition, the BPA Code of Practice (13.4) states that the parking operators “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.”

During a BPA Professional Development and Standards Board meeting in July 2015 it was formally agreed that relevant changes to the Code of Practice would be made to ensure compliance with the DfT guidelines regarding grace periods.

“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.”

It is very clear from the evidence that ParkingEye have failed to uphold the minimum grace periods set out in the BPA Code of Practice, as the total time in the carpark exceeded the paid period by only 16 minutes, a sum of 3-4 minutes prior to purchasing a ticket, and 12-13 minutes after the parking period had ended.

By any stretch of the imagination, these few minutes are well within what an ordinary independent person assessing the facts would consider reasonable. In fact this case demonstrates significant unreasonableness on the part of this notorious parking operator who appear to be attempting to get more and more 10/11 minute false 'overstay' allegations past POPLA this year, ignoring their Trade Body rules from the BPA.

3. 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

4. Insufficient signage - no information about how the ANPR data would be used and no contract formed, unlike in the Beavis case.

I believe that their signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. The unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers before they park.

Parking Eye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park but their own images of the vehicle included on the PCN disprove this because no signage is visible in said images.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand.

From the main road into the car park there is a small sign, located far above head height, which indicates that this is a car park covered by tariff payable at machine or by phone. I attached a photograph to support this. The car park is not clearly defined and that it consists of two very different sections. As you drive in from the road it appears that this is one car park, pay and display for all. Not one pay and display and one members only car park. This means that from entering the car park the driver has to take additional time to determine where the car can remain.
The “Patrons Only” sign and “Parking Tariffs Apply” sign are both very high up, small writing and means the driver would struggle to see it when driving in. The “Parking Tariffs Apply” sign is also placed facing away from the paying machine which does not facilitate the transaction or help make the process timely. Please see attached a picture of the said sign with paying stations facing the over way which I have gathered as proof.
The car park in question has no clear signage to explain what the relevant parking restrictions and fees in regards of prorated payments i.e. permitted or not. This means no contract can be formed with the landowner and all tickets are issued illegally.

Therefore it is respectfully requested that this parking charge request appeal be upheld on every point.

Yours Faithfully,

KeithP · 5 October 2017 at 11:54PM

Kevin or Kelvin Reynolds?

You've used both.

PurpleSun · 6 October 2017 at 8:04PM

Oops should be Kelvin! Thanks KeithP for spotting it. I'll make sure to correct it.

Any other comments from anyone?

DW Wigan - ParkingEye POPLA appeal / help please

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