Smart Parking / Breastfeeding

Oakley2702 · 11 July 2017 at 7:06AM

Hello,

My wife has received a PCN for allegedly overstaying in a free car park run by Smart Parking by 11 minutes, based on the time in and out of the car park as captured by ANPR.

We have received a POPLA code as we made our appeal on the grounds that our new born baby needed feeding, amongst other things - I don't have a copy of our initial appeal but we pretty much admitted she was driving in the wording of the appeal (stupidly I didn't check the forum first - even worse when you consider I've successfully fought and won 3 previous PCNs).

Is it possible to still use the non-POFA argument in the POPLA appeal?

Should I include the argument in the appeal about a newborn baby needing to be breastfed?

I have drafted a POPLA appeal based on post #3 in the NEWBIE sticky.

Fruitcake · 11 July 2017 at 7:27AM

You can't use non-POFA compliant NTK if the driver's identity is known.

Breastfeeding mothers have protected characteristics in accordance with the Equality Act 2010. PoPLA won't be interestd, but it should still be included.

What happened when you complained to the landowner? Did you mention this nasty breach of the EA2010 when you did? Whoever employed Not so Smart are jointly liable for this breach.
If they won't cancel the charge, leave negative feedback on their website and social media to warn others. Also complain to your MP and MRs May and Andrew Jones MP.

Post up your draft PoPLA appeal here for the regulars to check before you submit it.

Oakley2702 · 11 July 2017 at 7:36AM

Thanks for the quick reply.

I only sent my complaint to the land owner yesterday but am willing to escalate to social media and maybe getting the local media involved too.

I will finish my draft and put it up shortly.

Umkomaas · 11 July 2017 at 7:40AM

As well as drafting your POPLA appeal, you should press heavily on the organisation that contracted Smart by threatening a claim against them for a breach of the Equality Act 2010.

Tell them that unless they get their agents (with whom they are jointly and severally liable) to back off and cancel, you will sue them.

Do your research well on this so you can quote chapter and verse.

The_Deep · 11 July 2017 at 8:26AM

Breastfeeding mothers have protected characteristics under EA 2010 and are entitled to reasonable adjustments under the EA 2010. If any of PoPLA, the BPA or the PPC or the company who hired them fail to accord a person these adjustments you can take them to court for discrimination. Send a solicitor's letter, it only costs £2.00

I would think that neither Popla, the BPA. not the landowner would want to risk a court case. but imo, your trump card is grace periods.

Oakley2702 · 11 July 2017 at 8:31AM

Here's my draft, please let me know if you think any of the points should be switched around?

APPEAL POINT 1 – NO EVIDENCE OF LANDOWNER AUTHORITY

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

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

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

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

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

7.3 The written authorisation must also set out:

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

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

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

d who has the responsibility for putting up and maintaining signs

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

APPEAL POINT 2 – SIGNAGE

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.

I believe the signs at this car park do 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.

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.

Since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, I believe 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.''

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 judgment 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.

So, for this appeal, I put Smart Parking 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 Smart Parking 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.

APPEAL POINT 3 – GRACE PERIOD

The ANPR photos used show my car entering and exiting the car park, they do not account for the time taken to find an available space, park up, find and read a sign to check the terms and conditions of parking and then for the time taken to leave the car park.

As stated in the British Parking Association Code of Practice:

13 Grace periods
13.1 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.
13.2 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.
13.3 You should be prepared to 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.

Their signs do not make clear that their ANPR calculates the stay from the entry into the area to the exit and not the ordinary understanding that it includes only the period parked.
The Consumer Rights Act 2015 S.69 states that when a notice can have alternative meanings, the one most favourable to the consumer is to prevail. Some other members of their trade association make the grace period clear on signs and there is nothing to prevent Smart Parking doing likewise.

APPEAL POINT 4 – DISCRIMINATION

Upon returning to my car my 8 week old daughter became hysterical, I quickly realised this was due to her needing a feed and as I am breastfeeding her I decided that it was best to feed her there in the car, rather than subject her to a 15 minute drive home causing further distress. The Equality Act 2010 Section 17 states:

(3) A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth.

(4) The reference in subsection (3) to treating a woman unfavourably because she has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding.

beamerguy · 11 July 2017 at 8:41AM

The_Deep wrote: »

Breastfeeding mothers have protected characteristics under EA 2010 and are entitled to reasonable adjustments under the EA 2010. If any of PoPLA, the BPA or the PPC or the company who hired them fail to accord a person these adjustments you can take them to court for discrimination. Send a solicitor's letter, it only costs £2.00

I would think that neither Popla, the BPA. not the landowner would want to risk a court case. but imo, your trump card is grace periods.

Good advice Mr Deep but who is this solicitor who only charges £2
to send a letter ?? Maybe Gladstones or Wright Hassall ??

Guys_Dad · 11 July 2017 at 9:21AM

I fear you may have blown Grace by admitting wife breastfeeding.

Oakley2702 · 11 July 2017 at 9:33AM

Guys_Dad wrote: »

I fear you may have blown Grace by admitting wife breastfeeding.

Possibly, I know the grace period detailed applies to the end of the parking but surely the fact that the times captured are for entering/leaving rather than parking & leaving then she left in under the 3 hours, even with breastfeeding - taking into account the time needed to find a space/read signage/etc.

The_Deep · 11 July 2017 at 12:21PM

I am surprised that you are unaware of this wheeze Beamish.

https://www.debtguard.co.uk/services/letter-before-action/

My cousin, a very litigious person, put me on to it, he said it worked like a charm. I have not personally used one as I tend to write very assertive letters anyway.

beamerguy · 11 July 2017 at 12:35PM

The_Deep wrote: »

I am surprised that you are unaware of this wheeze Beamish.

https://www.debtguard.co.uk/services/letter-before-action/

My cousin, a very litigious person, put me on to it, he said it worked like a charm. I have not personally used one as I tend to write very assertive letters anyway.

Never heard of them before, sounds good

Smart Parking / Breastfeeding

Comments

Categories

Get our FREE Weekly email full of deals & guides - and it’s spam-free