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  • FIRST POST
    • cinereus
    • By cinereus 19th Aug 16, 4:36 PM
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    cinereus
    McDonald's & MET - almost a month later
    • #1
    • 19th Aug 16, 4:36 PM
    McDonald's & MET - almost a month later 19th Aug 16 at 4:36 PM
    The registered keeper got a Parking Charge Notice from MET following 106 mins in a 90 min limit McD's car park. Whoever was driving broke down and was waiting for assistance which is why it took so long. They paid for food with a credit card.

    I've read the newbie sticky twice now and can't make heads or tail of it with all the info scattered all over the place and strange sentence construction.

    Postal PCN ? (i.e. with no mention of any windscreen ticket at all, whether seen or not):

    A postal PCN or NTK might be headed up 'Notice to Keeper' or 'Reminder' or 'Charge Notice' or it may even be a random letter from a debt collector - it is still your Notice to Keeper, in effect, if it is the first letter to arrive.

    Compare your postal PCN to paragraph 8 or 9 of POFA 2012 (linked below), depending if there was a windscreen ticket issued first or not. It's an excerpt from a law but it really isn't difficult, please don't just ask the regulars here to check your NTK for you without making an attempt to check it yourself, unless you really need help to read the simple bullet points in paragraph 8 (NTK which follows a windscreen ticket) or paragraph 9 (NTK which serves as the first PCN).

    Look for omissions in wording or late arrival of the NTK and include those points in your appeal because as the registered keeper you can argue 'no keeper liability' if the PPC have not followed the requirements for a NTK. However that does not make the ticket 'illegal' it just demotes it to one which is issued under 'old rules and is only potentially aimed at an - unidentified of course! - driver.

    An appeal can be submitted by the keeper after a postal NTK even if the first opportunity has expired, after a windcsreen PCN.
    "An appeal can be submitted by the keeper after a postal NTK even if the first opportunity has expired, after a windcsreen [sic] PCN."

    Letter is dated almost month ago and was issued within 7 days. First discount date has passed, 3 days until 28 day cut-off. Keeper was away for a month hence tardiness in finding it.

    Can the keeper submit an appeal or not? The tacked on "after a windscreen PCN" makes the sentence unparseable.

    I assume you guys know the MET letters well but there's no mention I can find of whether these are "correct" under the POFA 2012 (although by my reading it seems fine apart from an omission from para 8(2)a and the fact it never mentions either a Keeper or Registered Keeper).

    MET are BPA members so, according to the sticky, it would seem the next step is to appeal to MET? Why then do all the linked successes related to MET & McD's suggest contacting the manager first?

    So ignoring the advice to contact McD's manager or this unparseable clause about a windscreen notice, I assume I write a BPA appeal and then go to POPLA starting with this letter?:

    Date


    Dear Sirs

    Re: PCN No. ....................

    I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.

    I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers before they park.

    Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. I believe the driver may well be eligible for cancellation and you have omitted clear information about the process for complaints including a geographical address of the landowner.

    There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

    I have kept proof of submission of this appeal and look forward to your reply.

    Yours faithfully,
    Thanks for any help. If we are not familiar with the current wording of MET notices, I can copy it all out here. And FWIW, no signage was noticed whilst there.
    Last edited by cinereus; 19-08-2016 at 4:38 PM.
Page 2
    • The Deep
    • By The Deep 11th Sep 16, 6:56 PM
    • 5,561 Posts
    • 4,272 Thanks
    The Deep
    Remember, all that matters in the end is what a judge says. Given the circumstances, I very much doubt if any judge in the land would find for the PPC. This one threw the case out.


    http://parking-prankster.blogspot.co.uk/2014/01/vcs-spanked-in-court-as-motorist-and.html
    • cinereus
    • By cinereus 18th Sep 16, 7:49 PM
    • 2,598 Posts
    • 909 Thanks
    cinereus
    your popla appeal wont be based on the above , so search out recent popla drafts over the last 4 months or so, nothing from before 2016

    issues will be like

    no landowner contract
    poor or inadequate signage (fails the BPA CoP)
    BPA CoP errors (especially clause #13)
    NTK errors
    POFA2012 errors
    not the same as the Beavis case
    Originally posted by Redx
    Thanks for this (and to the other two posters as well).

    Could you expand a little on what you mean by NTK errors and POFA2012 errors as I don't think I mentioned these in my original submissions.

    Also, is there any point continuing to chase with McD's at this stage?

    Cheers!
    • Carthesis
    • By Carthesis 19th Sep 16, 9:09 AM
    • 458 Posts
    • 802 Thanks
    Carthesis
    POFA2012 / NtK errors
    You need to compare the written Notice to Keeper you got through the post to the provisions of the Protection of Freedoms Act (2012), specifically Schedule 4, Paragraph 9.

    This is a number list of all the information which - BY LAW (as in actual "illegal if they don't do it" law, not the made up law PPCs adhere to) - the NtK has to contain. It contains things like identifying the Creditor clearly, and specifying the charge etc. etc.

    Look it up online and carefully compare the wording of PoFA2012 to the NtK. Some PPCs are far worse than others. MET I have no idea about, so you need to look at it and decide if anything is missing.

    Also, if you've not had any joy with the local McDs manager, have you contacted the Head Office via social media and also by letter and email? Chief Exec public email addresses can be found in a number of locations on the internet. Write to them explaining the circumstances and see if, miraculously, the managers find the authority to deal with this issue for you.
    • Coupon-mad
    • By Coupon-mad 19th Sep 16, 8:21 PM
    • 40,523 Posts
    • 52,401 Thanks
    Coupon-mad
    Thanks for this (and to the other two posters as well).

    Could you expand a little on what you mean by NTK errors and POFA2012 errors as I don't think I mentioned these in my original submissions.
    Originally posted by cinereus
    You will find a few template POPLA appeal points now added recently in 'POPLA Decisions'.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • cinereus
    • By cinereus 4th Oct 16, 7:15 PM
    • 2,598 Posts
    • 909 Thanks
    cinereus
    You need to compare the written Notice to Keeper you got through the post to the provisions of the Protection of Freedoms Act (2012), specifically Schedule 4, Paragraph 9.

    This is a number list of all the information which - BY LAW (as in actual "illegal if they don't do it" law, not the made up law PPCs adhere to) - the NtK has to contain. It contains things like identifying the Creditor clearly, and specifying the charge etc. etc.
    Originally posted by Carthesis
    These are the only points I've managed to find:

    POFA2012, Schedule 4, para 9(2)(e): state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
    (i)to pay the unpaid parking charges; or
    (ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
    (f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
    Slight problem for (e)(i) in that it says the driver is liable to pay in full, and that the have the right to recover if not paid in full but there is no explicit invitation for the keeper to pay in lieu. Is this a goer?

    POFA2012, Schedule 4, para 9(2)(f): warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
    Does this have to be exactly after 28 days or not? The NTK says "after 29 days" not starting from 29 days.

    POFA2012, Schedule 4, para 9(2)(h): identify the creditor and specify how and to whom payment or notification to the creditor may be made;
    It says how to pay and who to make cheques out to but only explicitly identifies MET as the "creditor" in the appeals procedure section.

    Are these points worth bundling together in a couple of NTK/POFA2012 paragraphs?
    • cinereus
    • By cinereus 4th Oct 16, 11:01 PM
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    cinereus
    Edited to add another point:

    [the NtK doesn't] show the period of parking (only entry and exit), so that's a 'fail'. Neither do they show the amount of parking charge outstanding (the difference between what's been paid and what should have been paid for the actual period of parking), so another 'fail'.
    • Coupon-mad
    • By Coupon-mad 4th Oct 16, 11:04 PM
    • 40,523 Posts
    • 52,401 Thanks
    Coupon-mad
    Yep they are all worth including...what does the entire sentence say about 'after 29 days'?
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • cinereus
    • By cinereus 5th Oct 16, 11:08 AM
    • 2,598 Posts
    • 909 Thanks
    cinereus
    Yep they are all worth including...what does the entire sentence say about 'after 29 days'?
    Originally posted by Coupon-mad
    You are warned that if, after 29 days from the date this warning is given (which is presumed to be the second working day after the Parking Charge Notice Issue Date), the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you.
    • Coupon-mad
    • By Coupon-mad 5th Oct 16, 2:06 PM
    • 40,523 Posts
    • 52,401 Thanks
    Coupon-mad
    I'd say that is correct, compliant as the date works out right.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • cinereus
    • By cinereus 5th Oct 16, 10:25 PM
    • 2,598 Posts
    • 909 Thanks
    cinereus
    I'd say that is correct, compliant as the date works out right.
    Originally posted by Coupon-mad
    Should it not be after 28 days (i.e. 29 days or later)?

    Clearly not a major issue, but "after 28 days" = "29 days or later" != "after 29 days". Anyway, apart from that shall I post up my first draft?
    • Coupon-mad
    • By Coupon-mad 5th Oct 16, 10:34 PM
    • 40,523 Posts
    • 52,401 Thanks
    Coupon-mad
    I don't think that is worth arguing, stick with more obvious NTK wording breaches & omissions. Yes, show us all your draft please.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mowkid
    • By mowkid 5th Oct 16, 11:03 PM
    • 59 Posts
    • 84 Thanks
    mowkid
    I've been following this out of interest but got stuck on gpeol. What is it anybody please.
    • cinereus
    • By cinereus 5th Oct 16, 11:26 PM
    • 2,598 Posts
    • 909 Thanks
    cinereus
    I don't think that is worth arguing, stick with more obvious NTK wording breaches & omissions. Yes, show us all your draft please.
    Originally posted by Coupon-mad
    Agreed. Here's my first draft (apologies for length but I read that this was encouraged).

    There’s footage of the two signs in this video: https://www.youtube.com/watch?v=aEO_6V9YHvA

    I’m not sure whether POPLA will pay much attention to my highlighting the breaking issue a bit more? !I have altered/added to several of the fantastic templates lifted from the POPLA decisions thread.

    Non-compliance with the PoFA 2012 - a compliant Notice to Keeper was never served - no Keeper Liability can apply.

    In Schedule 4, Paragraph 9, the Protection of Freedoms Act (PoFA) gives several legal requirements for the issue of a valid Notice to Keeper (NtK). I have yet to receive a NtK that meets these requirements and therefore, due to the lack of a compliant NtK being issued, the operator cannot hold me liable for this charge.

    According to Paragraph 9(2)(e), The notice must:

    state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—!
    (i)to pay the unpaid parking charges; or!
    (ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;!

    Nowhere on any correspondence I have received does the operator “invite the keeper to pay the unpaid parking charges”.

    Paragraph 9(2)(h) states that a valid notice must:

    identify the creditor and specify how and to whom payment or notification to the creditor may be made;

    I put this operator to strict proof of full compliance by demonstration where within the PCN the creditor is explicitly identified.

    Paragraph 9(2)(a) states that a notice must:

    specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

    Here, the drafters have been very careful with their wording. It is explicit that a valid NtK must specify the period of!parking. This is manifestly different from the period of time between the first and second photographs on the PCN as they only provide times between entry to and departure from the car park; it gives no information about how long the vehicle was stationary and parked for. Reference to previous adjudications that recognise that it takes time for a driver to read and understand signage as well as park and pay for tickets where appropriate will elucidate this vital distinction.

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

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

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

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

    *Conditions that must be met for purposes of paragraph 4:
    6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

    The terms are very clear and this is emphasised in the BPA CoP. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly the keeper cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

    !

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

    In cases with a keeper appellant, yet no PoFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.!

    Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

    As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and only Schedule 4 of the PoFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

    The burden of proof rests with the Operator, because they cannot use the PoFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land!and!show that I am personally liable for their parking charge. They cannot.

    Furthermore, the vital matter of full compliance with the PoFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

    Understanding keeper liability, “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.!

    There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.”

    Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.!

    This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:!


    “I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.'”

    !

    No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    Since this operator does not have proprietary interest in the land, 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, merely 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

    !

    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 explicitly saying the decision was only applicable to that instance as it took into account “the use of this particular car park & clear wording of the notices”.

    In the Beavis case, the £85 charge itself was in the largest sized typeface with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were signs in 'large lettering' 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:

    !

    In contrast, this case manifestly fails to 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 with multiple colours, a tiny typeface and many confusing and irrelevant paragraphs. 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 prior to 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. Areas of this site are unsigned and there are no full terms displayed at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    It is particularly noteworthy that signage does not give the sum of the parking charge (or indeed any charge at all) in large lettering so at no point was the driver correctly informed about any contractual arrangement to pay £100.. A driver cannot be liable to pay a charge not prominently communicated and £100 is certainly onerous, in a free car park. The signage is demonstrably inadequate to bring the charge to the notice of drivers.

    Schedule 4.2 clear states the following:

    (2)The reference in the definition of “parking charge” to a sum in the nature of damages is to a sum of which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant land).

    (3)For the purposes of sub-paragraph (2) “adequate notice” means notice given by—

    (a)the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph!12!for, or for purposes including, the purposes of sub-paragraph (2); or

    (b)where no such requirements apply, the display of one or more notices which—

    (i)specify the sum as the charge for unauthorised parking; and

    (ii)are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

    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 a couple of centimetres 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.!I also put the operator to strict proof of the height of the signs and the proximity of the nearest sign to where the driver was parked.

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

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

    ''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:

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

    ''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 far smaller than 3”, 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 magnifying glass) to be able to clearly read the terms. There are further guidelines published by the BPA on lettering size.

    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 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 the signage is not of a good enough size to afford motorists the chance to read and understand the full terms and conditions before deciding to remain in the car park and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
    • cinereus
    • By cinereus 6th Oct 16, 6:28 PM
    • 2,598 Posts
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    cinereus
    Not sure why it's adding in all those exclamation marks. Anyway, here's the rest:

    Grace periods - the operator is put to strict proof of full compliance with the BPA Code of Practice

    Since the BPA CoP gives explicit allowance for a grace period as well as accepts that it takes a non-negligible amount of time to read, process and understand the terms of parking, the operator must make an allowance for this.

    Similarly, it is imperative that the timings upon which the charge is based are reliably calibrated and can shown to be so at the date of the incident.

    Notwithstanding this, Paragraph 13 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

    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

    also

    Section B 18.5 If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.

    The CoP allows time to read the signs before deciding to stay and park. Given the location of the signs and the large quantity of small inscrutable text, it is necessary to leave one’s vehicle and approach the signs on foot to read the full terms and conditions. It would not be unreasonable to allow several minutes to enter the car park in traffic, find a free space and park then return to the entrance to view the sign there as well as the other type of sign located in the car park.

    Furthermore, in addition, the CoP allows a minimum ten minutes grace period to leave the car park. In this instance, the driver overstayed by a total of a mere 16 minutes according to the (unproven) timings produced by the claimant. Allowing for points 13.2 and 13.4, this clearly falls within the BPA-authorised minimum grace period. The PCN is in breach of the CoP and should never have been issued. Regardless, de minimis should be applied in this case.

    !

    The operator is put to strict proof of full compliance with the BPA Code of Practice CoP Section B

    18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

    No evidence has been produced to suggest that the car park in question has entrance signs not that they comply with BPA regulations. Further details of these strict guidelines can be found in Appendix B of the BPA CoP.

    !

    18.10 So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists.

    20.11 The Notice to Keeper serves three purposes:
    • it invites the keeper to pay the unpaid parking charge
    • if the keeper was not the driver it invites the keeper to tell you who the driver was, and
    • it starts the 28-day time period after which the keeper may become liable to pay the unpaid parking charge

    It does not invite the keeper to pay the unpaid parking charge.

    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.

    The signage does not say what the captured data is being used for

    22.12.1 Within all Appeal Rejection Letters, and in order to comply with the EU ADR Directive, the following wording should be used;
    • You have now reached the end of our internal appeals procedure. [Insert standard operator text to appeal to POPLA, including 28 day time limit for doing so, the POPLA verification code and the POPLA website address].

    There is no mention of the 28 day time limit.

    !

    Operator is put to strict proof !of the claim that staff were not aware of breakdown

    There is no evidence of this. It is submitted that the staff were informed of the breakdown and there is no evidence to the contrary. MET Parking Services need to show clear proof!that all the staff working during the relevant times have testified that this was not mentioned by the driver and that they would be available to appear in court. The appellant puts MET to strict proof of this claim and reminds the claimant of the VCS case at Northampton County Court!where the judge ruled in favour of the driver due to a breakdown.

    !

    Rejection letter misrepresents the facts

    In rejecting the appeal, point 3 makes two erroneous claims. Firstly, it misidentifies me, the registered keeper, as the driver. Secondly, it asserts that the driver got the vehicle running again. No such claim was made by the appellant.

    In actual fact, the appellant understand that the driver hired a professional to restart the vehicle and the presence of this third party and the work carried out can easily be demonstrated by reference to CCTV footage from the date in question.

    !

    !No legitimate interest – this charge is not like that in the Beavis car park / contract

    This case is an unfair, unenforceable penalty and differs from the ‘ParkingEye v Beavis’ judgement in every single fact, from signage to rationale/justification of the charge.

    The Beavis decision is not a silver bullet, not for any operator and not for MET. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule in that case only.

    It may be useful to refer to but it cannot be twisted to strike out the majority of private parking ticket appeals.

    The unusual contractual licence to park that was offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a ‘complex’ contract which Moore-Bick LJ at the Court of Appeal remarked was ‘entirely different’ from anything considered by the courts before.

    As regards the Beavis case, it was made plain that in more complex contracts, an agent or landowner must demonstrate a ‘legitimate interest’ in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from ParkingEye v Beavis because this case is not a ‘complex’ contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing ‘legitimate interest’.

    !

    Adding a blanket ‘administration charge’ brings the total over to “appropriate” threshold of £100 and constitutes an illegal surcharge

    The maximum ceiling in the BPA Code of Practice is £100. There are neither grounds nor justification under the CoP or the applicable law, to add any extra processing costs. As far as the BPA Code is concerned, this rule exists for the obvious reason that any operator could circumvent the BPA £100 maximum every time by introducing additional administration charges. £100 is the maximum PCN for a BPA AOS member not £101.50.

    In any case, charging a £1.50 fee for all card payments including debit cards is banned under statute, in the Consumer Rights (Payment Surcharges) Regulations 2012 explained here:
    gov.uk/government/uploads/system/uploads/attachment_data/file/452405/BIS-15-343-BIS-payment-surcharges-guidance.pdf
    Furthermore, it is trivial to demonstrate that the true cost of processing a debit card payment for £40 (or even £100) is an order of magnitude lower than £1.50.
    • Coupon-mad
    • By Coupon-mad 8th Oct 16, 12:22 AM
    • 40,523 Posts
    • 52,401 Thanks
    Coupon-mad
    I'd start with an introduction telling POPLA about the breakdown, something like the way you put it to us in your first post:

    The registered keeper got a Parking Charge Notice from MET following 106 mins in a 90 min limit McD's car park. Whoever was driving broke down and was waiting for assistance which is why it took so long. They paid for food with a credit card.
    Remove:
    or 'genuine resident'

    Here I would add more about the breakdown making the charge 'unconscionable', suggestion shown in red:
    As regards the Beavis case, it was made plain that in more complex contracts, an agent or landowner must demonstrate a ‘legitimate interest’ in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from ParkingEye v Beavis because this case is not a ‘complex’ contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing ‘legitimate interest’. Indeed a fundamental test following the Beavis case and the Consumer Rights Act, is whether a parking charge is fair, given the facts of the case which will almost always differ, or whether indeed the charge is unconscionable. If it is the latter then the charge is indisputably unfair and offends against the 'penalty rule', rendering it unrecoverable under both contract and consumer law.

    Trying to punish a driver for a few extra minutes dealing with an unforeseen mechanical breakdown is the very essence of unconscionableness and without intellectual dishonesty, I am sure neither the operator nor POPLA can seriously suggest otherwise.
    All the rest is great!

    The only bit I don't understand is the final sentence (I get the appeal point, about unlawful surcharges, just not this sentence):
    Furthermore, it is trivial to demonstrate that the true cost of processing a debit card payment for £40 (or even £100) is an order of magnitude lower than £1.50.
    Last edited by Coupon-mad; 08-10-2016 at 12:30 AM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • cinereus
    • By cinereus 8th Oct 16, 10:44 AM
    • 2,598 Posts
    • 909 Thanks
    cinereus
    I'd start with an introduction telling POPLA about the breakdown, something like the way you put it to us in your first post:



    Remove:


    Here I would add more about the breakdown making the charge 'unconscionable', suggestion shown in red:


    All the rest is great!
    Originally posted by Coupon-mad
    Thanks very much, that's really useful.

    The only bit I don't understand is the final sentence (I get the appeal point, about unlawful surcharges, just not this sentence):
    a) The charge is £100 which is the maximum allowed by BPA. If they also levy a £1.50 charge for card payments, this means the true amount paid is £101.50 which is above this threshold and it makes no difference how they attempt to disguise this.

    b) The £1.50 charge is also unfair since the true cost passed on from card processors is much much less than £1.50 for a £100 transaction. Maybe I should get rid of the parentheses though?

    That make sense?
    • Coupon-mad
    • By Coupon-mad 8th Oct 16, 8:01 PM
    • 40,523 Posts
    • 52,401 Thanks
    Coupon-mad
    Your a) and b) summary make sense more than the sentence I highlighted, IMHO.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • cinereus
    • By cinereus 13th Oct 16, 3:24 PM
    • 2,598 Posts
    • 909 Thanks
    cinereus
    WTF?

    "The number you entered is not valid, Please try again."

    It's been beyond 28 days from the letter date (although I only received it on the 22nd) now though nowhere on the letter does it suggest there is a time limit to appeal!

    POPLA have told me to request a new code from MET. What now if MET simply refuse without reason? According to what POPLA have said, there's nothing to stop MET or any operator simply refusing to give out codes or giving out invalid codes as POPLA have no power over them and you're simply left without a means to appeal.
    Last edited by cinereus; 13-10-2016 at 4:14 PM.
    • cinereus
    • By cinereus 13th Oct 16, 3:48 PM
    • 2,598 Posts
    • 909 Thanks
    cinereus
    I've also just noticed that the rejection letter doesn't include a standard rate phone number to pay the charge. As this isn't actually the PCN, is there a point to be made here?
    • Umkomaas
    • By Umkomaas 13th Oct 16, 4:08 PM
    • 11,009 Posts
    • 16,432 Thanks
    Umkomaas
    Complain to the BPA.
    NEWBIES - wise up - DO NOT IGNORE A PARKING CHARGE NOTICE - you have been warned!

    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.

    Please note: I am NOT involved in any 'paid for' appeals service.
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