St Austell McDonald £100 PCN

Redx wrote: »

so its easy enough to alter it slightly in this case if you or others wish it to be grammatically correct

so you would make the following alteration



the goal is always a cancellation (preferable) or a popla code

but the chances are they dont read it or dont care about it not being grammaticallly correct , its not english homework after all

Thank you that helps a lot.

This is my first incident. So just covering all the basis.

I'm assuming if I get a POPLA code it will be the "no genuine pre-estimate of losses" that will be used as it was 17 minutes over the time. Plus the manager said they could check internal cameras to see if I was inside or left. (I didn't leave.)

Thanks again any reply is always helpful.

Thanks for the patience.

Redx wrote: »

if you look at post #19 in this recent thread I gave an amended example of what to put in as the initial appeal (alterations were in red)

link

here is an example of a DPA breach counter claim

link

not a gpeol was thrown out by the SUPREME COURT over 18 months ago in the BEAVIS case

you should be studying post #3 of the NEWBIES sticky thread for examples of popla appeals and the legal arguments used , especially GRACE PERIODS (clause #13)

Thank you.

It's just that since 2013 till now there is so much info that it gets confusing sometimes.
And since many of the word searches lead to other posts and the mention of the newbies part but without actually quoting the part that is asked, you can easily get lost.

Never the less it's always better to make the mistakes here than on the appeal.

Thanks for the help and the quotes pointing exactly to where I need to go.

Redx wrote: »

that is why NEWBIES should read and follow the advice in the first 4 posts of the NEWBIES sticky thread, because its always kept up to date by coupon-mad (as you will see by the edit date at the bottom of each post)

its also why we point all newbies at it

there arent really any reasons to look at other threads unless looking for similar recent examples to crib from , or clarifications like I just pointed you at

the more you read, the more you learn , and parking pranksters blogs also come in really handy, as does the BMPA website, plus the BPA site so you can download and read their CoP

the slight alterations to the blue text were all that were need to change it to a historical reference from a future reference, which is something like 6 characters I highlighted in red

Yes true.

Thank you

I have been reading many websites and forums and read all of the BPA's Code of Practice.

Be honestly, sometimes it's semantics, and sometimes it's errors. And I can't really tell which is which. Like the "person" bit. But there are many doubts about all that is said on my PCN, like that there is no "CREDITOR" word any where, or the fact that "paragraph 9 and 6" are a loop as one explains the reason of the other and vice versa...confusing.


Thanks again.

After long process I think I've reached a possible good result with this appeal.

Open to suggestions/corrections.

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As the registered keeper of the above vehicle, I wish to appeal the parking charge notice “MET PARKING SERVICES LIMITED” issued against it. I would like to have the parking charge notice cancelled based on the following grounds:


1- 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 (Attachment A 3 pages)


2- The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras. (Attachment

3- No evidence of Landowner Authority


4- No Keeper Liability


5- I beg to differ, as no real facts where presented to who the driver was. As such no legal rights exist to acquire or process any Data. (Attachment C)


6- No Driver Liability


7- Unprofessional conduct by the operator.

 
1- The “contract” is not clearly stated on the signs of the car park. (followed by Attachment A)

The reference to the Operator Parking Eye as others are now more than ever being put in cause, as recurrent cases of “non-technical actions” leading to false Parking Charge Notices.

As the example of:

http://forums.pepipoo.com/index.php?showtopic=113424&st=40

(Attachment (PCP_Gladstone letter - FightBack Forums) and (GLADSTONE LETTER))


“[…] you have had a minimum of four different occasions where you could have stopped this, but have chosen not to. You should have double checked before you contacted the DVLA in the first place. […] they are escalating the matter as a complaint, […] they have concluded their investigation, found they and Gladstone's were at fault, and included a cheque for £100 as compensation,”


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:

imgur.com/a/AkMCN

(Attachment (Supreme Court Beavis case 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.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:


http:\2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

(Attachment ('Beavis case' sign))

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.

Here, 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. 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.

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.

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

(Attachment (FONT GUIDE))

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

signazon.com/help-center/sign-letter-height-visibility-chart.aspx

(Attachment (Sign Letter Height Visibility Chart))


''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.''

...and the same chart is reproduced here:

ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

(Attachment (Outdoor Dimensional Sign Letter Best Viewing Distance))

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

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

(Attachment (Vine v London Borough of Waltham Forest [2000] EWCA Civ 106 (5 April 2000))

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 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.

 
2- The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras. (Attachment

The misleading information between McDonald’s (the landowner) and the operator (has proprietary interest in the land) about CCTV vs ANPR.





“24 hour CCT recording in operation

FOR SAFETY AND SECURITY
PURPOSES CCTV IS OPERATED ON
THESE PREMISES AN MAY INCLUDE
AUDIO AND OFF SITE MONITORING

THE ORGANISATION RESPONSIBLE FOR THE
SYSTEM IS McDONALD’S RESTAURANTS LIMITED
OF 11- 59 HIGH ROAD, LONDON N2 8AW
TELEPHONE 08705244622”

Please notice the terms (“FOR SAFETY AND SECURITY”, “CCTV”, “OFF SITE MONITORING”, “THE ORGANISATION RESPONSIBLE FOR THE
SYSTEM IS McDONALD’S RESTAURANTS LIMITED”)

VS










“Patrols and/or automatic number plate recognition (ANPR) camera monitor vehicle activity
In this private car park. Photographic and video evidence may be taken and surveys may be
carried out. Please note that you may receive a parking charge notice for contravening any
terms and conditions of use, which will require the payment of a parking charge.
[…]
This site is operated by MET Parking Services Limited
PO Box 64168, London, WC1A 9BE
Web: https://www.metparking.com Tel: 0207 118 8003
Company No. 5468096
Registered in England & Wales
Registered Office:
125 London Wall, London, EC2Y 5AL
[…]
Car park may be monitored by ANPR/CCTV systems.”

Please notice the terms (“(ANPR) camera monitor vehicle activity
In this private car park”, “This site is operated by MET Parking Services Limited”)


It’s clear that seeing a symbol on a sign that you can’t read in a car park and then by the entrance a sign that you can read and with a McDonald’s symbol, with different information about the same system is case for dismissal on the basis of non-conforming with the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras in a clear way.




Paragraph 21.1 of the British Parking Association Code of Practice (CoP) advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The CoP requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

MET PARKING SERVICES LIMITED signs do not comply with these requirements because this car park signage failed to notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside the car park.

It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 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.

and Paragraph 69: Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

legislation.gov.uk/uksi/2008/1277/contents/made

(Attachment (The Consumer Protection from Unfair Trading Regulations 2008))

Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—

(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''

It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park. (Attachment
 

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(Popla appeal letter 1/2)