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ParkingEye Popla Appeal - Ilford Retail Park
samicallihan
post Mon, 26 Nov 2018 - 13:56
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Hi all,

Last week the keeper got a ParkingEye rejection letter.

The keeper has written an appeal to Popla here; hopefully its OK and someone can help if not:

Parking Eye - Parking Charge Notice Reminder
Reference No: xxxx/xxxxx
Vehicle No: xxxxxx

A parking charge notice reminder was issued on 20 October 2018 to the keeper for the vehicle of xxxxxxx, for allegedly overstaying in a free car park at Ilford Retail car park by approximately 16 minutes. (The keeper didn’t receive the initial first letter if there was one).

As the registered keeper I wish to refute these charges and this fine be cancelled, on the following grounds:

1. Parking Eye have completely failed to observe and acknowledge the BPA’s Grace Period
2. ANPR Accuracy and Compliance
3. No evidence of Landowner Authority
4. The signs in this car park are not prominent, clear or legible from all parking spaces or at the entrance

1. Parking Eye have completely failed to observe and acknowledge the BPA’s Grace Period

The BPA Code of Practice sets a MINIMUM ten minutes grace period as well as a second ten minutes grace period to exit. Kelvin Reynolds of the BPA stated:

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains. “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

Source: www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

The British Parking Association Code of Practice 13.2 is to allow a grace period. With the acceptance being 10 minutes to find parking space and read any signage, and 10 minutes to leave the parking area; the time recorded by the APNR, the driver is within the allocated time.

The suggested minimum 10 minutes should also have been extended when taking into consideration, the car park in question is known to be busy on normal days and it was extremely busy as it was Christmas Eve and there are quite few well known restaurants around the parking area and the driver was travelling with infant and a disable person and I am happy to provide a copy of disabled badge if required. I have requested Parking Eye to provide CCTV footage of the car park, which was going to be used as evidence but they have failed to provide it.

When the driver entered the car park, it took the driver several minutes to find an empty space to park the car, therefore the time should start when the payment was made at the machine and not at the entrance as the driver needed time to read the signs. The machine at this time was also not working.

The driver was travelling with 2 toddlers and required more than usual to exit the car park.

There is only one entrance and exit for all the retailers that the car park serves; resulting in queues entering and exiting the car park.

There are single vehicle lanes i.e. no room for cars to pass side by side in most lanes, thereby causing frequent multi vehicle blocks and queues during busy periods.

The driver returned to the vehicle and attempted to leave but the car park exit was busy and exit was completely blocked due to congestion, which delayed driver exiting the car park. The road leading to parking is very narrow and if there are a lot of cars entering or exiting at the same time then it completely blocks the exit. The driver of some of the vehicles refused to move their cars so it took quite some time for the exit to be cleared. Parking eye has refused to provide the CCTV footage to prove that the exit was not blocked due to congestion.

Considering all the above issues, Parking Eye have not complied with BPA Code of Conduct and their guidelines on grace times.

The driver was over by 16 minutes. In the process of all this the driver had to drive around look for parking spot, park up, had two toddlers with them (one who wasn’t really well which took a bit of time getting out of the car) to take out and put into pram and the machine was not working.

On the way back the driver had to get the two toddlers in (one who wasn’t really well which took a bit of time getting in the car) and again machine was not working and not accepting their coins. (The driver has two pics of machine but don’t really say it’s not working).

2. ANPR Accuracy and Compliance

I requested ParkingEye Ltd to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any 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 ParkingEye Ltd must produce evidence in response to these points and explain how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 November 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require ParkingEye Ltd in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:

21 Automatic number plate recognition (ANPR)

21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.

21.3 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.

21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

In my opinion, the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

Also the photograph provided does not prove where the picture was taken as the background is not visible and exit photo is dark and not clear and does not show the car in question.

3. No evidence of Landowner Authority

As ParkingEye Ltd does not have proprietary interest in the land then I require that they produce an unrelated copy of the contract with the landowner. I have not seen any evidence that Parking Eye has any right to issue parking charge notice.

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 ParkingEye is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a) The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d) Who has the responsibility for putting up and maintaining signs

e) The definition of the services provided by each party to the agreement

Parking Eye have not demonstrated that they had authority to issue parking notices for this site on the date that the PCN was given, and they have not provided a copy of the contract which would allow me to determine my liability and/or to request cancellation of the charge. Parking Eye have not provided me with a copy of the contract with the landowner or on site businesses, as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

4. The signs in this car park are not prominent, clear or legible from all parking spaces or at the entrance

In addition, the signs at Ilford Retail car park are not prominent, clear or legible from the majority of parking spaces. The signs and the machine tariff board were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:

68 Requirement for transparency (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent. (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car. 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.

Given the above, I would like you to consider the above sympathetically and thoroughly looking at the all the above points.

Thank you.
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post Mon, 26 Nov 2018 - 13:56
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bearclaw
post Mon, 26 Nov 2018 - 15:16
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If you have a look in the completed cases summary there is my uncontested appeal against Parking EYE at POPLA (Morrisons castleford).

Get onto the council and get the planning applications for the carpark - might need a FOI request for it. Useful to see if there are any things saying free parking is needed, no consent for charging etc.

Get photos of all the signs now. Look for signs on entry that are obsucred and unreadable - if they dont have the signs at the entry then they cannot add terms later on etc...
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samicallihan
post Mon, 26 Nov 2018 - 15:40
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QUOTE (bearclaw @ Mon, 26 Nov 2018 - 15:16) *
If you have a look in the completed cases summary there is my uncontested appeal against Parking EYE at POPLA (Morrisons castleford).

Get onto the council and get the planning applications for the carpark - might need a FOI request for it. Useful to see if there are any things saying free parking is needed, no consent for charging etc.

Get photos of all the signs now. Look for signs on entry that are obsucred and unreadable - if they dont have the signs at the entry then they cannot add terms later on etc...

Hi,

I had a look at your submission and it goes into details. One question what is an FOI?

The keeper will be getting the signs from the front as you enter and on the inside.

Other than that does it look OK to send?
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ostell
post Mon, 26 Nov 2018 - 15:42
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FOI = Freedom of Information Request

Or just go to the councils plannng page and look at the planning approval
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samicallihan
post Mon, 26 Nov 2018 - 15:48
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Cheers for that ostell.

I check the Council planning page and wasn't too sure what I was looking for as they have already been accepted years back to have car park space, etc. Basically planning approved for the car park.
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bearclaw
post Mon, 26 Nov 2018 - 15:59
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QUOTE (ostell @ Mon, 26 Nov 2018 - 15:42) *
FOI = Freedom of Information Request

Or just go to the councils plannng page and look at the planning approval


The planning page is the first place yes but if the records are old and paper based I found that the council wouldn't move until I slapped an FOI on them - they jumped then but the timescales are a bit tight if you are wanting them before a POPLA appeal....

QUOTE (samicallihan @ Mon, 26 Nov 2018 - 15:40) *
QUOTE (bearclaw @ Mon, 26 Nov 2018 - 15:16) *
If you have a look in the completed cases summary there is my uncontested appeal against Parking EYE at POPLA (Morrisons castleford).

Get onto the council and get the planning applications for the carpark - might need a FOI request for it. Useful to see if there are any things saying free parking is needed, no consent for charging etc.

Get photos of all the signs now. Look for signs on entry that are obsucred and unreadable - if they dont have the signs at the entry then they cannot add terms later on etc...

Hi,

I had a look at your submission and it goes into details. One question what is an FOI?

The keeper will be getting the signs from the front as you enter and on the inside.

Other than that does it look OK to send?


I think that PE folded on my appeal due to the length. If there is no rush to beat the POPLA deadline then chasing the landowner up is good as they can always instruct PE to cancel.

I'd put in the references to Shoe Lane and the red hand rule as Dennings words should carry weight with POPLA one hopes - I attacked mine from a no contract/no locus stani argument as it was specifically denied to park at the time. Yours is different and will need a bit of tweaking to reflect that.
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samicallihan
post Mon, 26 Nov 2018 - 16:03
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QUOTE (bearclaw @ Mon, 26 Nov 2018 - 15:59) *
QUOTE (ostell @ Mon, 26 Nov 2018 - 15:42) *
FOI = Freedom of Information Request

Or just go to the councils plannng page and look at the planning approval


The planning page is the first place yes but if the records are old and paper based I found that the council wouldn't move until I slapped an FOI on them - they jumped then but the timescales are a bit tight if you are wanting them before a POPLA appeal....

QUOTE (samicallihan @ Mon, 26 Nov 2018 - 15:40) *
QUOTE (bearclaw @ Mon, 26 Nov 2018 - 15:16) *
If you have a look in the completed cases summary there is my uncontested appeal against Parking EYE at POPLA (Morrisons castleford).

Get onto the council and get the planning applications for the carpark - might need a FOI request for it. Useful to see if there are any things saying free parking is needed, no consent for charging etc.

Get photos of all the signs now. Look for signs on entry that are obsucred and unreadable - if they dont have the signs at the entry then they cannot add terms later on etc...

Hi,

I had a look at your submission and it goes into details. One question what is an FOI?

The keeper will be getting the signs from the front as you enter and on the inside.

Other than that does it look OK to send?


I think that PE folded on my appeal due to the length. If there is no rush to beat the POPLA deadline then chasing the landowner up is good as they can always instruct PE to cancel.

I'd put in the references to Shoe Lane and the red hand rule as Dennings words should carry weight with POPLA one hopes - I attacked mine from a no contract/no locus stani argument as it was specifically denied to park at the time. Yours is different and will need a bit of tweaking to reflect that.

Thanks for the quick reply.

The keeper will be putting in the 'references to Shoe Lane and the red hand rule' into the "appeal".

No rush as of yet so will be looking into doing an FOI to the council; but what exactly does one ask them for? Checked the site and everything was on there approved.
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bearclaw
post Mon, 26 Nov 2018 - 17:05
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There is a rush - the council are allowed 20 working days for an FOI request. Thats about all the time you have for a POPLA appeal... If you are wanting to get them, id look on the planning portal today, find out whats missing and make a request. Basically you want the original planning applications for the "structures in the area bounded by <name all the roads> and all subsequent planning notices, applications, withdrawn ones, rejections, advertising consent"

If you have all the planning notices already what does it say about parking? It may say a certain number of parking locations, there can be lots of things... Ask the council planning department if they think that the car park operaters are allowed to offer paid for parking.

This post has been edited by bearclaw: Mon, 26 Nov 2018 - 17:12
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ostell
post Mon, 26 Nov 2018 - 17:56
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And if the parking should be for a limited time.
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nosferatu1001
post Tue, 27 Nov 2018 - 07:50
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Just ring the council
Ask them
Dont jump straight into a FOI, potentially a big waste of time

Also thats a terrible copy and paste job "and it was extremely busy as it was Christmas Eve " well no, it wasnt.
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