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  • FIRST POST
    • digga
    • By digga 15th Apr 19, 12:27 PM
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    digga
    Popla appeal - Civil Enforcement - Grace period
    • #1
    • 15th Apr 19, 12:27 PM
    Popla appeal - Civil Enforcement - Grace period 15th Apr 19 at 12:27 PM
    After reviewing the newbies thread and several other threads over the last 3 horus. I think I have done what is required.
    I received a parking fine stating from: 13:58->16:11. I bought a ticket from the machine at 14:03 for 2 hours -> 16:03 at a large local government park/public place.
    I tried appealing the "Civil Enforcement" stating I had to load my car, contain and strap secure my 3 year old and exit the car park and that this was still done within 8 minutes, well within a 10 minute grace period. They denied my claim stating I need to appeal to popla.
    Is this likely to be successful or should I just pay the fine?

    Can someone please confirm the below is sufficient for my claim, along side a photo of my parking ticket:


    Dear POPLA Adjudicator,

    PCN: XXXXX
    POPLA verification code: XXXX

    I am the registered keeper of vehicle XXXXXX and am appealing a parking charge from Civil Enforcement LTD Parking on the following points:


    1. Grace Period: BPA Code of Practice – non-compliance
    2. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

    3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

    4. Civil Enforcement lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing
    5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    6. The ANPR system is unreliable and inaccurate

    7. 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
    8. Beavis V ParkingEye not relevant in this case
    9. Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.







    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. Whilst 13.4 does not apply in this case (it should be made clear - a contract was never entered in to), 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 and 13.2 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, not limited to disability.”
    Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”
    Finally, some 4 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: LINK REMOVED)
    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 – certainly an allegation of under eleven minutes (as is the case here) is perfectly reasonable.
    As stated earlier in this section, whilst 13.4 does not apply in this case (as a contract was never entered in to), it is not unreasonable to suggest that clarification of this time period in relation to 13.4 also goes some way to clarifying the terms “reasonable period” and “reasonable grace period” stated in 13.1 and 13.2 respectively of the BPA’s Code of Practice.
    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, decide not to enter into a contract and then leave the car park.
    It is therefore argued that the duration of visit in question is not an unreasonable grace period, given:
    All factors discussed above serve merely to increase the time taken to:
    • Enter the car park
    • Find a suitable parking space
    • Locate a sign containing the terms and conditions.
    • Read the full terms and conditions
    • Decipher the confusing information being presented (one example being identifying which fees apply).
    • Return to car and safely leave the car park.
    Civil Enforcement LTD on this occasion have displayed on their PCN the entry and exit times from the car park. The entry/exit times are not the ‘period of parking’ and the law requires the ‘period of parking’.
    Taking into account the time of travelling to a parking space and travelling back out of the car park the period of parking here falls comfortably within the mandatory grace period as outlined above.


    2. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

    This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

    The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

    ''Right to claim unpaid parking charges from keeper of vehicle:
    4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

    (a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

    *Conditions that must be met for purposes of paragraph 4:

    6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

    The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.
    3. 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.''
    Last edited by digga; 16-04-2019 at 10:05 AM. Reason: cloud flare
Page 1
    • digga
    • By digga 15th Apr 19, 12:31 PM
    • 9 Posts
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    digga
    • #2
    • 15th Apr 19, 12:31 PM
    • #2
    • 15th Apr 19, 12:31 PM
    4) Civil Enforcement LTD lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

    It is suggested that Civil Enforcement LTD does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that Civil Enforcement LTD be asked to provide strict proof that they have the necessary 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 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 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. 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).





    6. The ANPR system is unreliable and inaccurate

    Civil Enforcement’s evidence shows no parking time, merely photos of a car driving in and out. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event.
    There is no proof that a ticket wasn't obtained, and the car was parked. Only pictures of the vehicle from the ANPR cameras near the entrance and the entry and exit times, which were well within the 30 minutes allowed.

    Civil Enforcement LTD are obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require Civil Enforcement LTD to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss in the case of Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from Parking Eye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.


    7. 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

    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.


    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 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.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, 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 motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition 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.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    As further 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. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

    ''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.''

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, 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.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) 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 Beavis case signs not being similar to the signs in this appeal at all, 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.

    This judgement is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is 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.

    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.
    • digga
    • By digga 15th Apr 19, 12:32 PM
    • 9 Posts
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    digga
    • #3
    • 15th Apr 19, 12:32 PM
    • #3
    • 15th Apr 19, 12:32 PM
    And the rest: - Is all this data really necessary, or can I just cut it down and argue solely on point 1?





    8. Beavis V ParkingEye not relevant in this case

    The letter received from Debt Recovery Plus Ltd on behalf of their Client, Britannia Parking, refers to a landmark court decision made on 4th November 2015 “in favour of a parking operator who took a motorist to court for non payment of a parking charge”. They provide a link of where more information can be found. The case referred to is that of Beavis v ParkingEye.

    However, there are sufficient differences between this incident and the case referred to above and so that case cannot be taken as a precedent.

    In Beavis v ParkingEye the car park was a free car park with a limited time and ParkingEye were paying the landowner for the use of the site. In this case the time is not limited and paid for and as far as I know, the operator does not pay the landowner.

    In the Beavis v ParkingEye case it was the charge as displayed on the signs in that car park that convinced the Supreme Court Judges that a contract was formed to pay £85. For example:

    Lord Neuberger: "The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it.’’ "the terms, like all standard contracts, were presented to motorists on a take it or leave it basis ....."

    In this case, the requirement to pay £85 (see sign below) is not clear and prominent as the Supreme Court commented on in Beavis v ParkingEye. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.



    I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Beavis v Parking Eye. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between ParkingEye and the motorist. This was not changed by the later judgment in the Supreme Court.

    This is in stark contrast to the present case where there is an economic transaction between the Operator and the motorist, and no restriction on the time of stay was made provided payment of the tariff was made.

    This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because of failure to obtain a ticket for a free period when the vehicle would otherwise have been welcome to park as it did.

    A contractual term which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of Beavis v ParkingEye v the judgment in which is irrelevant in this situation.

    Any reliance on the Supreme Court judgment in the case of Beavis v ParkingEye should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility and Parking Eye as that was their only income. As previously mentioned in this situation there is no such justification as the car was welcome to park as it did in return for a small payment to the Operator who is already making income from the site.

    9. Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.

    I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

    And as for whether average consumers 'would have agreed' to pay £100 had there been negotiations in advance, the answer here is obviously no. One could have parked for 24 hours in this car park for £12.00. There would have been no justification or negotiation that could possibly have persuaded an average consumer to pay £100 to this parking firm. Their charge relies upon unseen terms, not clear contracts, and should not be upheld.

    Therefore, it is respectfully requested that this parking charge notice appeal be allowed, and the appeal should be upheld on every point.
    • twhitehousescat
    • By twhitehousescat 15th Apr 19, 12:39 PM
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    twhitehousescat
    • #4
    • 15th Apr 19, 12:39 PM
    • #4
    • 15th Apr 19, 12:39 PM
    read carefully , TWO grace periods not one ,
    Time pretending I was asleep whilst under his desk , has given me insight to this sordid world
    • digga
    • By digga 15th Apr 19, 12:43 PM
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    digga
    • #5
    • 15th Apr 19, 12:43 PM
    • #5
    • 15th Apr 19, 12:43 PM
    twhitehousescat, thanks for your reply. Excuse my ignorance, what section are you referring to where I have stated there is only one grace period ?
    The majority of the verbiage was taken from another post/posts
    • twhitehousescat
    • By twhitehousescat 15th Apr 19, 12:54 PM
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    twhitehousescat
    • #6
    • 15th Apr 19, 12:54 PM
    • #6
    • 15th Apr 19, 12:54 PM
    there are 2 x grace periods

    a grace period at start of parking in order to read , digest , accept or leave site and a second grace period AFTER PAID parking time , to vacate land

    the parking co have set up cameras at entry / exit and use those times , your paid for time +grace periods exceed time on site
    Time pretending I was asleep whilst under his desk , has given me insight to this sordid world
    • twhitehousescat
    • By twhitehousescat 15th Apr 19, 12:58 PM
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    • #7
    • 15th Apr 19, 12:58 PM
    • #7
    • 15th Apr 19, 12:58 PM
    13 Grace periods
    13.1 If a driver is parking without your permission, or at
    locations where parking is not normally permitted they
    must have the chance to read the terms and conditions
    before they enter into the ‘parking 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.
    13.2 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.

    13.2.a Vehicles are not permitted to park under the grace
    period in spaces designated to specific users for example
    Blue Badge holders. At all times vehicles must have
    appropriate and valid permit e.g Blue Badge on display
    for enforcement officer to inspect.
    13.3 You must tell us the specific grace period at a site if our
    compliance team or our agents ask what it is.
    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.



    your paid for parking was 14:03 for 2 hours -> 16:03 , and you left site at 16.11

    the Grace Period at the end
    of the parking period should be a minimum of 10 minutes.
    Last edited by twhitehousescat; 15-04-2019 at 1:11 PM.
    Time pretending I was asleep whilst under his desk , has given me insight to this sordid world
    • digga
    • By digga 15th Apr 19, 1:19 PM
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    digga
    • #8
    • 15th Apr 19, 1:19 PM
    • #8
    • 15th Apr 19, 1:19 PM
    twwhitehouse, sorry I don't understand what you mean.
    My first post details 13.1 -> 13.4 in its entirety?
    This includes where it states there are two grace periods and all the statements you have made in bold?


    Is there an issue with what I have detailed, or do you believe I do not have a case for a claim?
    Last edited by digga; 15-04-2019 at 1:22 PM.
    • twhitehousescat
    • By twhitehousescat 15th Apr 19, 1:24 PM
    • 3,682 Posts
    • 4,628 Thanks
    twhitehousescat
    • #9
    • 15th Apr 19, 1:24 PM
    • #9
    • 15th Apr 19, 1:24 PM
    ok , I am reluctant to go back and read your "war and peace" post

    I am pointing out to you that the camera times are different to to parked times , I have also pointed out the there are 2 grace periods

    I edited my post above to simply state

    your paid for parking was 14:03 for 2 hours -> 16:03 , and you left site at 16.11

    the Grace Period at the end
    of the parking period should be a minimum of 10 minutes.


    that in itself shows that the parking co have not complied with BPA COP
    Time pretending I was asleep whilst under his desk , has given me insight to this sordid world
    • digga
    • By digga 15th Apr 19, 1:33 PM
    • 9 Posts
    • 2 Thanks
    digga
    twhitehousescat:

    Yes, I realise that the times they have outlined are only entrance and exit times, this is why I have put in a claim with all the information detailed pushing this point. I also stated I tried to originally contest solely on this point directly with "civil enforcement LTD", but they still denied the claim.



    I do not want to make a war and peace complaint, but it seems this is what everyone here is suggesting to do(according to all the posts + newbie sections) that I have spent 3+ hours reading.


    I know my complaint is legitimate and understand I was within the relevant BPA grace period's and quoted all the relevant sections. The purpose of this post is to get advise to either proceed with my complaint to "popla" with the verbiage above, or should I cut it down to just section 1.
    • The Deep
    • By The Deep 15th Apr 19, 1:39 PM
    • 12,626 Posts
    • 12,842 Thanks
    The Deep
    Put simply, they are trying to scam you. They know full well about the grace periods, but hope that you do not. Complain to your MP.

    On 15th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

    Until this is done you should still complain to your MP, citing the new legislation.

    http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

    Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.
    You never know how far you can go until you go too far.
    • digga
    • By digga 15th Apr 19, 1:41 PM
    • 9 Posts
    • 2 Thanks
    digga
    I will complain to the MP, but I still need this PCN off my back.


    Can someone review my verbiage above before I send it ?
    If I don't get anything back, I will just send section 1 and hope for the best.



    thanks
    • Coupon-mad
    • By Coupon-mad 15th Apr 19, 4:41 PM
    • 70,218 Posts
    • 82,800 Thanks
    Coupon-mad
    This section quotes the wrong part of the POFA. You want para 9, not 8:
    6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

    The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

    This should be won on grace periods but keep the other points in except the one about unreliable ANPR (you can't prove it).

    And remove the duplication (#4 & #5 are about the same thing, so remove #5).

    I would make it easier for the POPLA assessor and break your first point down into 'arrival' and 'leaving' and mention the 3 year old being with the driver:


    1. Grace Period: BPA Code of Practice – non-compliance

    As registered keeper, I received a ludicrously unfair parking charge notice in the post, which states that this car was at a large car park location from: 13:58->16:11, being the times the VRN was first and last seen at the distant entrance & exit.

    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 - and there MUST be time given on arrival, clearly, or CEL and the BPA are living on another planet.

    (a) On arrival - less than 5 minutes

    The driver had a 3 year old with them, which slows a driver down in terms of safety and speed of walking, but still managed to complete all of this within five minutes flat:

    drive into the large car park
    drive round looking for a space (it was busy, according to the driver)
    find a space
    park in that space
    unstrap the toddler, grab bags and belongings
    lock the car
    look for signs or the nearest machine
    walk with the toddler to the nearest machine
    read the sign, find the right money and queue to pay
    pay at the machine & display the ticket/receipt allowing 2 hours parking from 14:03.


    The 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.''

    The 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...”

    Kelvin Reynolds, Head of Public Affairs and Policy has stated in a BPA article:

    “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, not limited to disability.”

    Clearly a driver can NEVER be expected to have taken no time at all on arrival or had an opportunity to read the t&cs and if POPLA believe that to be true, then POPLA are accepting from CEL's own evidence, that the driver was allowed NO time to read any terms and thus, can't be bound by them.


    (b) On leaving - 8 minutes

    The car was captured by ANPR leaving past the exit at or around 16:11, this operator's timings are to be believed. Even if you take that as true and believe the cameras are synchronised, this is merely 8 minutes after the paid-for time expired.

    This is well within a reasonable grace period to leave, given the size of this large car park, how busy it was, and that the driver had a toddler to safely strap in, and bags to load in the boot before vacating the space, and then traversing the site to queue to exit.

    The 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.”

    Finally, as POPLA is well aware as you will have read this before in informed POPLA appeals - even though the BPA appears to be hoping everyone has forgotten it - some 4 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: LINK REMOVED)

    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 an allegation of under eleven minutes (as is the case here) is perfectly reasonable.

    Civil Enforcement, on this occasion, have shown on their PCN the entry and exit times from the car park only. The entry/exit times are not the ‘period of parking’ and the law - the POFA - talk about a ‘period of parking’, not a total stay onsite in moving traffic.

    The signs offering tariffs talk about a parking period, not a 'total stay'. The driver did not breach any terms at all. Taking into account the time of travelling to a parking space and travelling back out of the car park the period of parking here falls comfortably within the mandatory grace periods as outlined above.
    Like I say, you need most of the other points too (except the ones I said to remove, above).
    Last edited by Coupon-mad; 15-04-2019 at 4:43 PM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • digga
    • By digga 15th Apr 19, 6:15 PM
    • 9 Posts
    • 2 Thanks
    digga
    Coupon mad, thanks for your detailed response, very helpful.
    I have amended this to para "9", removed 5+6 and replaced 1 with your copy, as it's more specific.



    I have amended my document accordingly, I cannot post a link to the full document as i'm a new user, but will update this case with how it turns out.
    • KeithP
    • By KeithP 15th Apr 19, 7:16 PM
    • 14,268 Posts
    • 16,208 Thanks
    KeithP
    Please can you also change the thread title to something more meaningful?
    .
    • digga
    • By digga 15th Apr 19, 7:43 PM
    • 9 Posts
    • 2 Thanks
    digga
    Keithp, There doesn't appear to be a way to do this, unless you know how?
    cloudfare kept blocking the original thread post, appeared to be because there was too many words
    • KeithP
    • By KeithP 15th Apr 19, 8:29 PM
    • 14,268 Posts
    • 16,208 Thanks
    KeithP
    Go into edit on your opening post.

    Click on Advanced.

    Type what you want in the Title box.
    .
    • Le_Kirk
    • By Le_Kirk 16th Apr 19, 9:03 AM
    • 4,601 Posts
    • 3,962 Thanks
    Le_Kirk
    Go into edit on your opening post.

    Click on Advanced.

    Type what you want in the Title box.
    Originally posted by KeithP
    ........ unless you are trying to use the forum on a mobile!!!
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