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  • FIRST POST
    • pret32
    • By pret32 13th Jun 19, 1:55 PM
    • 17Posts
    • 20Thanks
    pret32
    Parking Eye - POPLA appeal, St James Retail Park Northampton
    • #1
    • 13th Jun 19, 1:55 PM
    Parking Eye - POPLA appeal, St James Retail Park Northampton 13th Jun 19 at 1:55 PM
    Good afternoon,
    Been a member on this forum for a few years, and in that time have successfully won 4 appeals using the advice and support from the members of this forum so a big thank you.

    However, this is first time appealing to POPLA. Driver overstayed by 16 minutes in a free 3 hour max stay car park, in St James Retail Park in Northampton. Driver was a customer of Starbucks and was meeting a client there, and has bank statement of purchases.

    Keeper wishes to appeal against the PCN using the grace periods. Keeper does not live local to the car park so cannot return to take photos of signage.

    Based on previous threads and appeals, the Keeper will appeal to POPLA using the following points;

    1 - Grace period: BPA Code of Practice - non - compliance
    3 - 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)
    5 - The ANPR System is Neither Reliable nor Accurate
    6 - No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    7 - No Planning Permission from Northampton City Council for Advertising Consent for signage

    The Keeper will post the draft POPLA appeal but is there anything else they should consider adding which may support the appeal? Is it likely to win using the grace period at POPLA?

    Thanks in advance for your help.
Page 1
    • The Deep
    • By The Deep 13th Jun 19, 2:01 PM
    • 15,216 Posts
    • 15,875 Thanks
    The Deep
    • #2
    • 13th Jun 19, 2:01 PM
    • #2
    • 13th Jun 19, 2:01 PM
    What abour signage?

    IMO, PE signs leave much to be desired. I doubt that many judges would agree that they are capable of forming a contract, read this

    https://forums.moneysavingexpert.com/showthread.php?t=5972164

    and enlist the support of your MP as they are obviously trying to scam you.

    Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. 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
    You never know how far you can go until you go too far.
    • Coupon-mad
    • By Coupon-mad 14th Jun 19, 1:27 AM
    • 76,549 Posts
    • 89,887 Thanks
    Coupon-mad
    • #3
    • 14th Jun 19, 1:27 AM
    • #3
    • 14th Jun 19, 1:27 AM
    Driver overstayed by 16 minutes in a free 3 hour max stay car park, in St James Retail Park in Northampton. Driver was a customer of Starbucks and was meeting a client there, and has bank statement of purchases.
    You need to split that 16 minutes and NEVER refer to it as 16 minutes in the POPLA appeal, so that your grace periods paragraph is something like this one:

    https://forums.moneysavingexpert.com/showthread.php?p=75812666#post75812666

    Additionally, get photos of any sign that says '3 hours PARKING TIME' as opposed to 'total stay' and put the photos of the former, embedded into your POPLA appeal.

    You need POPLA to agree the offer was 3 hours parking (NOT TOTAL STAY) and that the (say) 6 mins on arrival and ten mins to leave both fall within allowed time.
    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
    • MistyZ
    • By MistyZ 14th Jun 19, 7:38 AM
    • 1,050 Posts
    • 2,106 Thanks
    MistyZ
    • #4
    • 14th Jun 19, 7:38 AM
    • #4
    • 14th Jun 19, 7:38 AM
    Have you complained to the landowner? Best done before the POPLA process commences.

    I see no problem in casting the net wide - how about banging out firm complaints / requests for cancellation to the manager of Starbucks and the manager of the retail park?

    Could give that Starbucks a ring to ask who the landowner actually is. If it's an offsite land management company email their CEO too.
    • fisherjim
    • By fisherjim 14th Jun 19, 8:15 AM
    • 3,966 Posts
    • 6,312 Thanks
    fisherjim
    • #5
    • 14th Jun 19, 8:15 AM
    • #5
    • 14th Jun 19, 8:15 AM
    The signage here which is woeful as usual with Parking Eye, says "3 Hours Maximum stay" in large letters, then lower down "Parking Limited to 3 Hours".


    There are so many traders on this site that Starbucks may have little sway.



    It is owned by DTZ Investors:


    https://www.cspretail.com/properties/st-james-retail-park/
    https://www.dtzinvestors.com/en
    • The Deep
    • By The Deep 14th Jun 19, 8:34 AM
    • 15,216 Posts
    • 15,875 Thanks
    The Deep
    • #6
    • 14th Jun 19, 8:34 AM
    • #6
    • 14th Jun 19, 8:34 AM
    The signage here which is woeful as usual with Parking Eye, says "3 Hours Maximum stay" in large letters, then lower down "Parking Limited to 3 Hours".

    There are so many traders on this site that Starbucks may have little sway. [/url]
    Originally posted by fisherjim
    But is OP writes to all of them threatening to withdraw custom it may have some effect. After all, due to their signage, few of their claims are likely to succeed in court.
    You never know how far you can go until you go too far.
    • pret32
    • By pret32 16th Jun 19, 11:02 AM
    • 17 Posts
    • 20 Thanks
    pret32
    • #7
    • 16th Jun 19, 11:02 AM
    • #7
    • 16th Jun 19, 11:02 AM
    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...
    • pret32
    • By pret32 16th Jun 19, 11:08 AM
    • 17 Posts
    • 20 Thanks
    pret32
    • #8
    • 16th Jun 19, 11:08 AM
    • #8
    • 16th Jun 19, 11:08 AM
    4. No evidence to show that the APNR system is reliable nor accurate.

    Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require ParkingEye to provide records with the location of the cameras used in this instance together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photographic evidence to ensure the accuracy of the ANPR images.
    In terms of the technology of the ANPR cameras themselves, The BPA does not audit the ANPR systems in use by parking operators, and the BPA has no way to ensure that the systems are in good working order or that the data collected is accurate. Independent research has not found that the technology is 'generally accurate' or proportionate or reliable at all, and this is one of the reasons why Councils are banned from using it in car parks.
    Two statements by the BPA themselves, the first one designed to stop POPLA falling into error about assumed audits:

    Steve Clark Head of Operational Services at the BPA emailed a POPLA 'wrong decision' victim back in January 2018 regarding this repeated misinformation about BPA somehow doing 'ANPR system audits', and Mr Clark says:

    "You were concerned about a comment from the POPLA assessor who determined your case which said:

    ‘In terms of the technology of the cameras themselves, the BPA audits the camera systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate’

    You believe that this statement may have been a contributory factor to the POPLA decision going against you and required answers to a number of questions from us. This is not a statement that I have seen POPLA use before and therefore I queried it with them as we do not conduct the sort of assessments that the Assessor alludes to.

    POPLA have conceded that the Assessor's comments may have been a misrepresentation of Clause 21.3 of the BPA Code which says:

    ‘You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.’

    Our auditors check operator’s compliance with this Code clause and not the cameras themselves.''

    ICO’s CCTV Code of Practice state that if ParkingEye wish to use ANPR cameras then they must undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary. It also states that ParkingEye must regularly evaluate whether it is necessary and proportionate to continue using it. It therefore follows that I require The Operator to provide proof of regular privacy impact assessments in order to comply with the ICO’s CCTV COP and BPA. I also require the outcome of privacy impact assessments to show that its use has ‘a lawful basis and is justified, necessary and proportionate’.

    The ICO’s CCTV Code of Practice goes on to state in 5.3 Staying in Control:

    ‘once you have followed the guidance in this code and set up the surveillance system you need to ensure that it continues to comply with the DPA and the code’s requirements in practice. You should: tell people how they can make a subject access request, who it should be sent to and what information needs to be supplied with their Request

    And in 7.6 Privacy Notices;

    ‘It is clear that these and similar devices present more difficult challenges in relation to providing individuals with fair processing information, which is a requirement under the first principle of the DPA. For example, it will be difficult to ensure that an individual is fully informed of this information if the surveillance system is airborne, on a person or, in the case of ANPR, not visible at ground level or more prevalent then it may first appear. One of the main rights that a privacy notice helps deliver is an individual’s right of subject access.’

    The Operator has not stated clearly on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). This is a mandatory requirement of the ICO’s CCTV COP (5.3 and 7.6) which in turn is mandatory within the BPA’s COP and a serious omission by any data processor using ANPR, such that it makes the use of this registered keeper’s data unlawful. By virtue of the nature of an ANPR system recording only entry and exit times, ParkingEye are not able to definitively state the period of parking. I require ParkingEye to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the Notice To Keeper (NTK). I contend that if the vehicle was in fact parked for the period stated by the Claimant, it clearly was not in breach of the parking terms and conditions, as it was in accordance with the Grace Period permitted by the BPA Code of Practice.

    I contend that it is wholly unacceptable to rely on unclear photos that provide no evidence of date, time or location in an attempt to profit by charging a disproportionate sum where no loss has been caused as parking was FREE regardless.


    5. 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.



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

    ParkingEye do not have Planning Permission for Advertising Consent for signage exceeding 0.3 m2.
    Anyone who displays an advertisement, or uses an advertisement site, or knowingly permits someone else to do so, without the consent required for it is acting illegally.
    Displays which are unauthorised until consent is granted will amount to a criminal offence and can be subject to prosecution in the Courts where substantial fines can be

    imposed. I believe ParkingEye are/have been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment for which no planning application is valid. I request ParkingEye provide evidence that the correct Planning Applications were submitted (and approved) in relation to Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates (16/06/2019)








    Please excuse the formatting and the way it appears - it is much neater in Word!
    • Umkomaas
    • By Umkomaas 16th Jun 19, 12:16 PM
    • 25,111 Posts
    • 40,512 Thanks
    Umkomaas
    • #9
    • 16th Jun 19, 12:16 PM
    • #9
    • 16th Jun 19, 12:16 PM
    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.
    Is the PE NtK deficient in PoFA terms? If so, that must be your prime point of appeal. Or have you simply copied and pasted this section of your appeal?

    4. No evidence to show that the APNR system is reliable nor accurate.
    Waste of time, POPLA never consider this.

    6. No Planning Permission from Northampton City Council for Advertising Consent for signage
    Ditto, as above.

    Do you have proof? If so, press the council to take enforcement action - lack of advertising consent is a criminal case (planning permission is different, civil issue). But no council has pressed the criminal prosecution button in any cases we've handled here (AFAIAA).

    Please excuse the formatting and the way it appears - it is much neater in Word!
    If you're copying and pasting directly from Word, you need to stop, otherwise you'll get your IP address blocked.

    https://forums.moneysavingexpert.com/showthread.php?t=5706338
    Please note, we are not a legal advice forum. I personally don't get involved in the critiquing of court case papers, so unable to help on that front. Please don't ask.
    Give a man a fish, and you feed him for a day;
    show him how to catch fish, and you feed him for a lifetime.
    • pret32
    • By pret32 16th Jun 19, 12:59 PM
    • 17 Posts
    • 20 Thanks
    pret32
    Thanks for your reply Umkomaas. I apologise for copy and pasting from Word, I was unaware that this was banned.


    Is the PE NtK deficient in PoFA terms? If so, that must be your prime point of appeal. Or have you simply copied and pasted this section of your appeal?
    Originally posted by Umkomaas

    The Ntk is not deficient and is not a 'golden ticket'. As you suggested this was copied and pasted from another appeal so I will remove this section.


    Ditto, as above.
    Originally posted by Umkomaas

    I shall also remove the ANPR unreliable point.

    Do you have proof? If so, press the council to take enforcement action - lack of advertising consent is a criminal case (planning permission is different, civil issue). But no council has pressed the criminal prosecution button in any cases we've handled here (AFAIAA).
    Originally posted by Umkomaas

    No I do not have proof (again taken from another appeal) so this shall be removed.

    This shall just leave 1. grace periods, 2. landowner authority, and 3. hidden/unreliable signage, as my appeal points. Is there any other comments you feel I should make?


    Thanks
    • pret32
    • By pret32 17th Jun 19, 11:27 AM
    • 17 Posts
    • 20 Thanks
    pret32
    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.
    • 1505grandad
    • By 1505grandad 17th Jun 19, 11:35 AM
    • 244 Posts
    • 354 Thanks
    1505grandad
    You have put "Private Eye" as the name of PPC at the beginning.
    • pret32
    • By pret32 17th Jun 19, 11:37 AM
    • 17 Posts
    • 20 Thanks
    pret32
    You have put "Private Eye" as the name of PPC at the beginning.
    Originally posted by 1505grandad


    Thank you, I have amended this.
    • Coupon-mad
    • By Coupon-mad 18th Jun 19, 1:07 AM
    • 76,549 Posts
    • 89,887 Thanks
    Coupon-mad
    (a) On arrival - the 'observation period':
    in your word document I assume the headings are in bold and underlined and separated from the words above, so that things like the above sub-headings are really clear?

    And you may have already exhausted the complaint, but if not then you are doing things in the wrong order and it's dangerous for you to get this wrong. MistyZ told you what the pre-POPLA step must be (this can't be tried later):
    Have you complained to the landowner? Best done before the POPLA process commences.

    I see no problem in casting the net wide - how about banging out firm complaints / requests for cancellation to the manager of Starbucks and the manager of the retail park?

    Could give that Starbucks a ring to ask who the landowner actually is. If it's an offsite land management company email their CEO too.
    Originally posted by MistyZ
    Do not reply saying you've spoken to one manager! When we say 'cast the net wide' and 'exhaust' the retail complaint step, we mean absolutely wring it out.

    BEFORE EVEN TRYING POPLA.
    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
    • pret32
    • By pret32 18th Jun 19, 7:20 PM
    • 17 Posts
    • 20 Thanks
    pret32
    Thanks Coupon Mad.


    Yes in my Word doc I have the headings formatted so it is looking much tidier than it appears.


    I was nervous about approaching the retail manager of Starbucks, due to time not being on my side. Today is the 28th day since the POPLA code was issued - is the deadline definitely 32 days for appeal?


    Anyway I took your advice and called the manager of Starbucks, she has asked me to email her the PCN # and vehicle reg and she will do her best to get it cancelled. She seemed confident that this would be possible. I am doing this now.


    If I do not hear back by the 31st day should I still go ahead with my POPLA appeal?


    Thanks
    • Coupon-mad
    • By Coupon-mad 18th Jun 19, 7:22 PM
    • 76,549 Posts
    • 89,887 Thanks
    Coupon-mad
    Today is the 28th day since the POPLA code was issued - is the deadline definitely 32 days for appeal?
    Yes, 100% certainly.
    Anyway I took your advice and called the manager of Starbucks, she has asked me to email her the PCN # and vehicle reg and she will do her best to get it cancelled. She seemed confident that this would be possible.
    Ask her to copy you in please, to the cancellation request, so you can use it in POPLA evidence if the parking firm do not cancel quickly enough, and could she please forward their response quickly, so you can do POPLA by the end of the week if need be.
    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
    • pret32
    • By pret32 18th Jun 19, 7:50 PM
    • 17 Posts
    • 20 Thanks
    pret32
    Yes, 100% certainly.
    Originally posted by Coupon-mad


    Thanks, that's a sigh of relief!

    Ask her to copy you in please, to the cancellation request, so you can use it in POPLA evidence if the parking firm do not cancel quickly enough, and could she please forward their response quickly, so you can do POPLA by the end of the week if need be.
    Originally posted by Coupon-mad

    No problem, I have done this.


    Thanks, will update as soon as I hear. Appreciate all the help guys.
    • pret32
    • By pret32 22nd Jun 19, 11:05 AM
    • 17 Posts
    • 20 Thanks
    pret32
    Chasing the Starbucks manager is not proving fruitful. They have not replied to my email and I have called the store but they are not available when I call.


    Today is the 32nd day for POPLA, so I am going to submit my draft appeal today.


    Any bits of advice for submitting to POPLA? is PDF format best?


    Thanks
    • Redx
    • By Redx 22nd Jun 19, 11:28 AM
    • 25,020 Posts
    • 31,953 Thanks
    Redx
    choose OTHER and attach the pdf doc , that is the best advice, plus DO NOT MISS THIS POPLA DEADLINE

    get it done asap

    you can save as a pdf in word or libreoffice or similar , or use an online converter , word doc in and pdf output and download , easy peasy
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • pret32
    • By pret32 22nd Jun 19, 12:18 PM
    • 17 Posts
    • 20 Thanks
    pret32
    choose OTHER and attach the pdf doc , that is the best advice, plus DO NOT MISS THIS POPLA DEADLINE

    get it done asap

    you can save as a pdf in word or libreoffice or similar , or use an online converter , word doc in and pdf output and download , easy peasy
    Originally posted by Redx


    Thanks RedX. I will do it this afternoon. I will export from Word into PDF.


    I WILL NOT MISS THE DEADLINE!
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