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  • FIRST POST
    • Timeliegh
    • By Timeliegh 8th Sep 16, 2:37 PM
    • 14Posts
    • 7Thanks
    Timeliegh
    Tower road, Newquay, Again..
    • #1
    • 8th Sep 16, 2:37 PM
    Tower road, Newquay, Again.. 8th Sep 16 at 2:37 PM
    Hi All -

    Just a quick one - hoping for an some experienced advice on whether or not its worth me pursuing a popla appeal.

    So holiday in Cornwall = visited the tower road car park 3 times - two of which resulted in a fine.

    I paid for the 8am - 6pm
    I arrived at 11am on both occasions and left at 7, and thought that if I paid for the 8am to 6pm that would give me the equivalent in hours - in hindsight this was naive and stupid but that's all I have.
    I'm not one for enjoying fines, so please believe me when I say I really did think the 8 - 6 would give me the equivalent hours.
    In Newcastle - parking tariffs leave nothing to the imagination - it just seems they have left theirs open to interpretation so - people fall into this trap - or I could just be me lol.

    So I have already appealed to PE with a template from here, And now I'm at the point where I either need to pay the the reduce fine or appeal further.
    If its pointless me appealing to POPLA I would rather pay the reduced fine and be done with it. But if you think I could appeal successfully I would go all the way.

    Thanks for your time, and I would appreciate any feedback.

    Thanks

    Tim
    Last edited by Timeliegh; 08-09-2016 at 3:06 PM.
Page 1
    • Umkomaas
    • By Umkomaas 8th Sep 16, 8:54 PM
    • 10,271 Posts
    • 15,140 Thanks
    Umkomaas
    • #2
    • 8th Sep 16, 8:54 PM
    • #2
    • 8th Sep 16, 8:54 PM
    There's plenty of evidence that, with forum advice, you have a much greater chance of winning at POPLA than you do of losing. You will need to do plenty of research - search for 'ParkingEye POPLA' or 'Tower Road POPLA' or 'ParkingEye Tower Road' and read threads/posts from the past 3 months or so.

    Also read newbies FAQ sticky, post #3 about tackling a POPLA appeal as well as looking at the POPLA Decisions sticky reading from the last post backwards to get a feel for how POPLA is deciding cases.

    You will need to deal with each of your PCNs as separate entities, don't amalgamate into one appeal, neither to PE nor to POPLA.
    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.
    • Coupon-mad
    • By Coupon-mad 9th Sep 16, 12:04 AM
    • 38,357 Posts
    • 49,810 Thanks
    Coupon-mad
    • #3
    • 9th Sep 16, 12:04 AM
    • #3
    • 9th Sep 16, 12:04 AM
    It is not pointless appealing to POPLA and in fact we have found PE often cancel at POPLA stage re Tower Road, when they see a forum appeal, going into detail. Not sure why, it might be because of the contract, but we've seen them give up.

    Worth the fight, so do a search and find a few appeals to crib from. Then show us your version before submitting them (same for both PCNs as long as the details are similar).

    Did both PCNs have the 'POFA keeper liability after 29 days' wording on the front page near the bottom? Or instead of that, do either of them have a blank space near the bottom and no mention of the POFA and the registered keeper being liable?
    PCN in a private car park in England/Wales? DON'T PAY IT BUT DO NOT IGNORE IT

    USE THE 'FORUM JUMP' ON RIGHT, GO TO THE PARKING TICKETS FORUM. READ THE 'NEWBIES' THREAD.
    Do NOT read old advice to ignore, unless in Scotland/NI.

    • Timeliegh
    • By Timeliegh 9th Sep 16, 8:38 AM
    • 14 Posts
    • 7 Thanks
    Timeliegh
    • #4
    • 9th Sep 16, 8:38 AM
    • #4
    • 9th Sep 16, 8:38 AM
    There's plenty of evidence that, with forum advice, you have a much greater chance of winning at POPLA than you do of losing. You will need to do plenty of research - search for 'ParkingEye POPLA' or 'Tower Road POPLA' or 'ParkingEye Tower Road' and read threads/posts from the past 3 months or so.

    Also read newbies FAQ sticky, post #3 about tackling a POPLA appeal as well as looking at the POPLA Decisions sticky reading from the last post backwards to get a feel for how POPLA is deciding cases.

    You will need to deal with each of your PCNs as separate entities, don't amalgamate into one appeal, neither to PE nor to POPLA.
    Originally posted by Umkomaas
    Hey, Thanks for the reply - I've already appealed to PE - I assumed this was just a mandatory fail in order to get a POPLA code, I admit I did amalgamate into one appeal to them, though it came back as two fails.
    I'll spend some time today researching
    • Timeliegh
    • By Timeliegh 9th Sep 16, 8:42 AM
    • 14 Posts
    • 7 Thanks
    Timeliegh
    • #5
    • 9th Sep 16, 8:42 AM
    • #5
    • 9th Sep 16, 8:42 AM
    It is not pointless appealing to POPLA and in fact we have found PE often cancel at POPLA stage re Tower Road, when they see a forum appeal, going into detail. Not sure why, it might be because of the contract, but we've seen them give up.

    Worth the fight, so do a search and find a few appeals to crib from. Then show us your version before submitting them (same for both PCNs as long as the details are similar).

    Did both PCNs have the 'POFA keeper liability after 29 days' wording on the front page near the bottom? Or instead of that, do either of them have a blank space near the bottom and no mention of the POFA and the registered keeper being liable?
    Originally posted by Coupon-mad
    Hi,

    Yes both had the 'POFA keeper liability after 29 days' wording on the front page near the bottom.
    I'll spend some time time looking into more cases from tower road - may I ask what you mean by forum appeal? How would they know this at the POPLA stage?
    • Umkomaas
    • By Umkomaas 9th Sep 16, 8:49 AM
    • 10,271 Posts
    • 15,140 Thanks
    Umkomaas
    • #6
    • 9th Sep 16, 8:49 AM
    • #6
    • 9th Sep 16, 8:49 AM
    I'll spend some time time looking into more cases from tower road - may I ask what you mean by forum appeal? How would they know this at the POPLA stage?
    They'll certainly know the difference between a forum (assisted) appeal covering all the essential legal and technical aspects of a comprehensive POPLA appeal, than one that starts:
    "I parked my car, went to the ticket machine, but didn't have the right change, so thought that a few minutes wouldn't matter ........"
    or words to that effect!
    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.
    • Redx
    • By Redx 11th Sep 16, 8:51 PM
    • 12,030 Posts
    • 14,199 Thanks
    Redx
    • #7
    • 11th Sep 16, 8:51 PM
    • #7
    • 11th Sep 16, 8:51 PM
    parking prankster is looking for info on the pcn,s and parking receipts for TOWER ROAD , Newquay

    http://parking-prankster.blogspot.co.uk/2016/09/tower-beach-newquay-request-for.html

    so if you have copies or scans of your recent pcn,s and payable tickets, I suggest you send him copies by email

    thanks
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Timeliegh
    • By Timeliegh 19th Sep 16, 2:27 PM
    • 14 Posts
    • 7 Thanks
    Timeliegh
    • #8
    • 19th Sep 16, 2:27 PM
    • #8
    • 19th Sep 16, 2:27 PM
    So here is my POPLA appeal letter - and original appeal letter to PE

    I would completely appreciate some feedback. I have a little under a week to pay the reduced fine - I'm not really sure I have a leg to stand on.

    Heres my PE appeal letter - I dont remember straying this far from basic facts - I may have shot myself in the foot with this alone

    "Appeals dept
    Parking Eye
    PO Box 565
    Chorley
    PR6 6HT
    APPEAL AGAINST PARKING CHARGE NOTICE
    Ref 122123/309946
    Ref 532126/071925
    To whom it may concern
    I am writing to appeal against 2 parking charges I incurred whilst on holiday in Cornwall.
    We visited Newquay on 3 occasions, 2 of those visits seem to have resulted in parking fines.
    It seems your tariff has caught me out. I by no means intended to stay over my welcome – however the time I should leave was open to interpretation – something it seems from researching these unfair charges that is a common occurrence and cause for complaint to Newquay council and also the consumer rights authorities.
    When paying for the parking, I opted for the tariff that fit the number of hours I intended to stay. Since there were NO hourly charges – just set times – 8am to 6pm was one of the tariffs I remember.
    To me that means I’m paying for 10 hours of parking. To which I did. By parking around lunch time, 11am-12am, I would assume that paying for this parking would allow me the number of hours paid to park.
    It seems however I was wrong in this assumption – and the single hour I remained has cost me over £100 instead of the 2 pounds or so that it would actually cost.
    I find it hard to understand this obscene charge for misinterpreting your unclear signage.

    I am happy and willing to pay the actual cost of what it would have cost me to stay this final hour had the signs indicated a clearly hourly tariff. However it is clear to me from my reading that you will flat out deny this appeal. It also seems obvious to me and others that these tariffs are designed to trip people up.
    So with this in mind I would really appreciate it if you withdraw these charges – like I said I am happy to pay the real charge for the extra hour that I seemed to have stayed in error.
    If this is not something you are willing to do, I would like a POPLA reference code as I will most definitely take this appeal this as far as is possible.
    Yours sincerely
    Tim Leigh


    "
    • Timeliegh
    • By Timeliegh 19th Sep 16, 2:30 PM
    • 14 Posts
    • 7 Thanks
    Timeliegh
    • #9
    • 19th Sep 16, 2:30 PM
    • #9
    • 19th Sep 16, 2:30 PM
    Heres my POPLa draft..

    "

    Hi,

    I am the registered keeper, however not the driver at the time in question – the driver will not be named according to POFA 2012.
    On the occasion in question, my family I and visited Newquay for the day.
    We entered a pay and display car park as close to the beach as we could without getting lost.
    Some weeks later – and not the 8 days quoted by the Parking Eye charge notice we received a parking ticket notice for £100
    We purchased a ticket to what we thought was sufficient time according to the signage.
    I have yet to receive any evidence that our car was present without a valid ticket, such as a photo.
    I have spent many hours researching Parking Eye and this car park in particular – and it appears to be a reoccurring issue caused in a misleading trap set by Parking Eye – for the sole purpose of making money in this fashion.
    These issues are widely reported as are the complaints sent to Cornwall council.
    I feel the fine is not only unwarranted, but completely unfair and out of proportion.
    The points I would like to submit to show I am not liable for this charge are as follows
    1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
    As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN.
    Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

    From the pcn I can only see that, that the car stayed for a certain amount of time and that the contravention was 'either/or' an overstay or failure to pay. This does not give any clarity of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

    These are the omissions:
    ''9(2)The notice must—
    (b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
    (c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
    (d)specify the total amount of those parking charges that are unpaid...'
    NTK is not compliant, for example re this requirement:

    The NTK specifically fails on all counts.

    Furthermore per Schedule 4 of the Protection of Freedoms Act, Paragraph 9, states that the Notice to Keeper must state the following:

    9(1) ''A notice which is to be relied on as a notice to keeper for the purposes of paragraph 9(1)(b) is given in accordance with this paragraph if the following requirements are met.
    (2)The notice must—

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

    Parking Eye does not identify the relevant land. The location is ambiguous: Tower Road, Newquay could imply the vehicle was parked on the road that passes through Newquay, which it was not, and there is more than one car park in the vicinity.

    2) The Parking Charge Notice sent to me as Registered Keeper incorrectly interprets the Protection of Freedoms Act 2012.
    Paragraph 9(2)(f) of The Protection of Freedoms Act 2012 state:

    ...warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given
    The PCN issued by Parking states the following:

    “You are warned that, after 29 days from the date given (which is presumed to be the second working day after the Date Issued), 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. This warning is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2010 and is subject to our complying with the applicable conditions under Schedule 4 of that Act.
    Since Parking Eye is misquoting the Protections of Freedoms Act 2012 then they are not complying with said Act and as such cannot rely upon it to hold me liable as keeper.
    3) No standing or authority to pursue charges nor form contracts with drivers
    I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Parking Eye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has neither automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.
    I therefore request Parking Eye provide proof to POPLA and myself with acopy of the contract between Parking Eye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Parking Eye.

    4) No landowner authority

    Section 7 of the BPA CoP states that an operator must have the written authorisation of the Landowner, if the parking company does not own the land, which Parking Eye do not.

    Paragraphs 7.1 & 7.2 dictate some of the required contract wording. I request Parking Eye provide proof of the contract terms with the actual landowner (not another agent, shop, etc) and I would also point out these mandatory requirements, which a vague ‘witness statement’ will not prove:

    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
    I do not believe that Smart Parking have a contract with the site landowner which meets all the requirements above and even if they do, the contract breaches the EA 2010 if indirect discrimination arises as a result of any inflexible point of policy.

    5) The signage in the car park was inadequate.

    The British Parking Association CoP requires that terms and conditions on car parking signs must be clearly readable. The ticketing machines located at the car park detailing the terms and conditions of parking are very confusing to read and contain a large amount of writing in small lettering that is not easy to read or understand. The machines as well are difficult to use.

    In accordance with the rule of contra proferentem, it is reasonable for the driver to conclude that Parking Eye was one of the many private parking companies that choose not to use the provisions of POFA. The car park signage simply failed to notify the driver that Parking Eye intended to exercise its rights under POFA.

    6) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis

    It appears that a partial registration number may have been recorded, either by inadvertent error of the disabled/elderly driver, or by failure of the operator's own keypad, or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. No evidence has been produced either way by this operator as to the cause of the issue and it is not disputed by any party that there was certainly no attempt to avoid payment, which according to the complex signage was paid in full.

    This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

    Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

    At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

    ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

    And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

    At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:
    ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

    This is NOT a 'more complex' case by any stretch of the imagination.

    At 32, it was held that a trader, in this case a parking company:
    ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    Clearly a charge out of all proportion to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

    The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

    - the signage failed to make any obligation and/or risk of penalty prominent, to enter the FULL VRN. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

    - Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

    As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

    7) There must be a de minimis argument to be put forward in these cases where a wrong registration is keyed in.

    As the registered Keeper and present at the time of parking at ‘Tower Road, Newquay I am fully aware that suitable parking according to the signage was purchased.
    As I commented in point 5_
    the ticketing machines were difficult to use. Since Parking Eye have yet to provide any details of the Parking ticket purchased, one can assume that it is because the details of registration number keyed in at the time might be incorrect.

    Some PPCs have pursued charges when an O is input instead of a 0 & vice versa. What about a typo that is a simple transposition of two characters? It would be simple enough to have the automated systems test for this when no match is found on ANPR records. There has been no loss of revenue & while the automated systems can't take account where people have typed in the VRN of their second car most trivial mistakes could be caught e.g. in this case the machine should not allow a ticket to be issued when an incomplete VRN is entered.
    8)It was also apparent on this day that the were issues with one or more of the parking machines. Numerous people were complaining about incorrect tickets being printed, or simply that no tickets were being produced – this seemed to be intermittent and with the lack of onsite staff, this was causing allot of doubt and lack of confidence in the machines to accurately record and print information.
    If the phone logs to Parking eyes are checked from the day in question – the volume of calls to the help line from this site will be apparent – and also add reason to doubt the integrity of the information supplied by Parking Eye.
    This concludes my POPLA Appeal


    "
    • Coupon-mad
    • By Coupon-mad 20th Sep 16, 12:30 AM
    • 38,357 Posts
    • 49,810 Thanks
    Coupon-mad
    The start needs to make it very clear to a skim-reading POPLA Assessor that you were not driving, so add the bits I've shown in red:
    I am the registered keeper and was a passenger in the car so I can give an honest account of this unfair charge - however I was not the driver at the time in question – the driver will not be named according to POFA 2012.
    In the NTK part I would remove all of this (below) because it isn't going anywhere that POPLA will agree with. Too many words protesting about a NTK makes it harder for them to see something you could win on, if they are disagreeing with what is said about the NTK...and I disagree with this bit:
    Furthermore per Schedule 4 of the Protection of Freedoms Act, Paragraph 9, states that the Notice to Keeper must state the following:

    9(1) ''A notice which is to be relied on as a notice to keeper for the purposes of paragraph 9(1)(b) is given in accordance with this paragraph if the following requirements are met.
    (2)The notice must—

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

    Parking Eye does not identify the relevant land. The location is ambiguous: Tower Road, Newquay could imply the vehicle was parked on the road that passes through Newquay, which it was not, and there is more than one car park in the vicinity.

    2) The Parking Charge Notice sent to me as Registered Keeper incorrectly interprets the Protection of Freedoms Act 2012.
    Paragraph 9(2)(f) of The Protection of Freedoms Act 2012 state:

    ...warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given
    The PCN issued by Parking states the following:

    “You are warned that, after 29 days from the date given (which is presumed to be the second working day after the Date Issued), 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. This warning is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2010 and is subject to our complying with the applicable conditions under Schedule 4 of that Act.
    Since Parking Eye is misquoting the Protections of Freedoms Act 2012 then they are not complying with said Act and as such cannot rely upon it to hold me liable as keeper
    .

    Your point #3 is the same as point #4 (so remove the weaker one, which is #3).


    Remove this entire point below, because (correct me if I'm wrong) your case is not even about putting in a wrong car reg number?

    7) There must be a de minimis argument to be put forward in these cases where a wrong registration is keyed in.
    So having pruned those bits off, then go and look at the recent posts in 'POPLA Decisions' where I have recently posted some template POPLA appeal points. For example there's a much longer & stronger 'unclear signs' argument and you may find something else you can use as well, such as the 'individual appellant not being the liable driver'

    Oh, and you need to state clearly if you are saying the PCN arrived after day 14, state the dates (approx) when you believe the PCN in question arrived and point out that it was served too late for keeper liability. That's important to say as POPLA generally believe that ParkingEye PCNs are 'compliant'...

    Then can you show us your draft mark 2?

    Last edited by Coupon-mad; 21-09-2016 at 9:39 PM.
    PCN in a private car park in England/Wales? DON'T PAY IT BUT DO NOT IGNORE IT

    USE THE 'FORUM JUMP' ON RIGHT, GO TO THE PARKING TICKETS FORUM. READ THE 'NEWBIES' THREAD.
    Do NOT read old advice to ignore, unless in Scotland/NI.

    • Timeliegh
    • By Timeliegh 20th Sep 16, 9:37 AM
    • 14 Posts
    • 7 Thanks
    Timeliegh
    I cant thank you enough for taking a look - but THANK YOU!!

    Here's my second draft

    Hi,
    I am the registered keeper and was a passenger in the car so I can give an honest account of this unfair charge; however I was not the driver at the time in question – the driver will not be named according to POFA 2012.
    On the occasion in question, my family I and visited Newquay for the day.
    We entered a pay and display car park as close to the beach as we could without getting lost.
    Some weeks later – and not the 8 days quoted by the Parking Eye charge notice we received a parking ticket notice for £100
    We purchased a ticket to what we thought was sufficient time according to the signage.
    I have yet to receive any evidence that our car was present without a valid ticket, such as a photo.
    I have spent many hours researching Parking Eye and this car park in particular – and it appears to be a reoccurring issue caused in a misleading trap set by Parking Eye – for the sole purpose of making money in this fashion.
    These issues are widely reported as are the complaints sent to Cornwall council.
    I feel the fine is not only unwarranted, but completely unfair and out of proportion.
    The points I would like to submit to show I am not liable for this charge are as follows
    1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
    As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN.
    Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

    From the pcn I can only see that, that the car stayed for a certain amount of time and that the contravention was 'either/or' an overstay or failure to pay. This does not give any clarity of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

    These are the omissions:
    ''9(2)The notice must—
    (b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
    (c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
    (d)specify the total amount of those parking charges that are unpaid...'
    NTK is not compliant, for example re this requirement:

    The NTK specifically fails on all counts.
    2) 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.''


    3) No landowner authority

    Section 7 of the BPA CoP states that an operator must have the written authorisation of the Landowner, if the parking company does not own the land, which Parking Eye do not.

    Paragraphs 7.1 & 7.2 dictate some of the required contract wording. I request Parking Eye provide proof of the contract terms with the actual landowner (not another agent, shop, etc) and I would also point out these mandatory requirements, which a vague ‘witness statement’ will not prove:

    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
    I do not believe that Smart Parking have a contract with the site landowner which meets all the requirements above and even if they do, the contract breaches the EA 2010 if indirect discrimination arises as a result of any inflexible point of policy.

    4) 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”

    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:

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

    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 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.

    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:

    "archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm"

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

    "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:

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

    ''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:

    "bailii.org/ew/cases/EWCA/Civ/2000/106.html"

    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.
    5) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis

    It appears that a partial registration number may have been recorded, either by inadvertent error of the disabled/elderly driver, or by failure of the operator's own keypad, or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. No evidence has been produced either way by this operator as to the cause of the issue and it is not disputed by any party that there was certainly no attempt to avoid payment, which according to the complex signage was paid in full.

    This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

    Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

    At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

    ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

    And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

    At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:
    ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

    This is NOT a 'more complex' case by any stretch of the imagination.

    At 32, it was held that a trader, in this case a parking company:
    ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    Clearly a charge out of all proportion to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

    The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

    - the signage failed to make any obligation and/or risk of penalty prominent, to enter the FULL VRN. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

    - Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

    As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

    6)It was also apparent on this day that the were issues with one or more of the parking machines.
    Numerous people were complaining about incorrect tickets being printed, or simply that no tickets were being produced – this seemed to be intermittent and with the lack of onsite staff, this was causing allot of doubt and lack of confidence in the machines to accurately record and print information.
    If the phone logs to Parking eyes are checked from the day in question – the volume of calls to the help line from this site will be apparent – and also add reason to doubt the integrity of the information supplied by Parking Eye.

    This concludes my POPLA Appeal
    • Timeliegh
    • By Timeliegh 21st Sep 16, 3:49 PM
    • 14 Posts
    • 7 Thanks
    Timeliegh
    I've added a further point relating to the late arrival of the PCN

    Hi,
    I am the registered keeper and was a passenger in the car so I can give an honest account of this unfair charge; however I was not the driver at the time in question – the driver will not be named according to POFA 2012.
    On the occasion in question, my family I and visited Newquay for the day.
    We entered a pay and display car park as close to the beach as we could without getting lost.
    Some weeks later – and not the 8 days quoted by the Parking Eye charge notice we received a parking ticket notice for £100
    We purchased a ticket to what we thought was sufficient time according to the signage.
    I have yet to receive any evidence that our car was present without a valid ticket, such as a photo.
    I have spent many hours researching Parking Eye and this car park in particular – and it appears to be a reoccurring issue caused in a misleading trap set by Parking Eye – for the sole purpose of making money in this fashion.
    These issues are widely reported as are the complaints sent to Cornwall council.
    I feel the fine is not only unwarranted, but completely unfair and out of proportion.
    The points I would like to submit to show I am not liable for this charge are as follows
    1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
    As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN.
    Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

    From the pcn I can only see that, that the car stayed for a certain amount of time and that the contravention was 'either/or' an overstay or failure to pay. This does not give any clarity of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

    These are the omissions:
    ''9(2)The notice must—
    (b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
    (c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
    (d)specify the total amount of those parking charges that are unpaid...'
    NTK is not compliant, for example re this requirement:

    The NTK specifically fails on all counts.

    2) The alleged date of the incedent was 25/07/2016. The PCN arrived on the 22/08/2016.
    Excluding weekends this is 21days.
    POFA paragraph 9 states
    (5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

    (6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

    According to POFA as stated above the PCN was served too late for keeper liability.
    3) 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.''


    4) No landowner authority

    Section 7 of the BPA CoP states that an operator must have the written authorisation of the Landowner, if the parking company does not own the land, which Parking Eye do not.

    Paragraphs 7.1 & 7.2 dictate some of the required contract wording. I request Parking Eye provide proof of the contract terms with the actual landowner (not another agent, shop, etc) and I would also point out these mandatory requirements, which a vague ‘witness statement’ will not prove:

    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
    I do not believe that Smart Parking have a contract with the site landowner which meets all the requirements above and even if they do, the contract breaches the EA 2010 if indirect discrimination arises as a result of any inflexible point of policy.

    5) 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"

    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:

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

    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 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.

    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:

    "archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm"

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

    "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:

    "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 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:

    "bailii.org/ew/cases/EWCA/Civ/2000/106.html"

    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.
    6) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis

    It appears that a partial registration number may have been recorded, either by inadvertent error of the disabled/elderly driver, or by failure of the operator's own keypad, or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. No evidence has been produced either way by this operator as to the cause of the issue and it is not disputed by any party that there was certainly no attempt to avoid payment, which according to the complex signage was paid in full.

    This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

    Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

    At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

    ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

    And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

    At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:
    ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

    This is NOT a 'more complex' case by any stretch of the imagination.

    At 32, it was held that a trader, in this case a parking company:
    ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    Clearly a charge out of all proportion to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

    The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

    - the signage failed to make any obligation and/or risk of penalty prominent, to enter the FULL VRN. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

    - Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

    As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

    7)It was also apparent on this day that the were issues with one or more of the parking machines.
    Numerous people were complaining about incorrect tickets being printed, or simply that no tickets were being produced – this seemed to be intermittent and with the lack of onsite staff, this was causing allot of doubt and lack of confidence in the machines to accurately record and print information.
    If the phone logs to Parking eyes are checked from the day in question – the volume of calls to the help line from this site will be apparent – and also add reason to doubt the integrity of the information supplied by Parking Eye.

    This concludes my POPLA Appeal
    • Fruitcake
    • By Fruitcake 21st Sep 16, 4:21 PM
    • 35,478 Posts
    • 71,530 Thanks
    Fruitcake
    I've only just started reading it, but the bit about "excluding weekends" is irrelevant as far as POFA 2012 is concerned.
    It is elapsed days that count, the day of the alleged event being day zero. You should therefore state the total number of days it took to arrive (including weekends) and then how many days late it was and therefore fails the 14 day requirement of POFA.

    "Some weeks later *quote the exact number of days * – and not the 8 days quoted by the Parking Eye charge notice we received a parking ticket charge notice for £100."

    Remove any reference to the word "fine." It is a speculative invoice, nothing else.

    Where you talk about inadequate signage, you should include your own photographs. If you can't visit the site yourself, there are people on here who may be able to help with them.
    Last edited by Fruitcake; 21-09-2016 at 4:35 PM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Fruitcake
    • By Fruitcake 21st Sep 16, 4:47 PM
    • 35,478 Posts
    • 71,530 Thanks
    Fruitcake
    Have you checked with the local council that parking lie have planning permission for the ANPR cameras, and advertising consent for the signs. If any of the signs are greater than 0.3m2 then advertising consent is a legal requirement. It is a criminal offence not to have it.

    So, contact the council planning department and ask these questions. If there is no consent, then put that in your appeal as well.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Timeliegh
    • By Timeliegh 21st Sep 16, 5:24 PM
    • 14 Posts
    • 7 Thanks
    Timeliegh
    I've just contact the council regarding this. I'll let you know if, and what they come back with.

    Thank you for your help here
    • Coupon-mad
    • By Coupon-mad 21st Sep 16, 10:26 PM
    • 38,357 Posts
    • 49,810 Thanks
    Coupon-mad
    POPLA CODE 606XXXXXXX

    I am the registered keeper and was a passenger in the car so I can give an honest account of this unfair charge; however I was not the driver at the time in question – the driver will not be named according to POFA 2012.

    I have yet to receive any evidence that our car was present without a valid ticket, such as a photo. The points I would like to submit to show I am not liable for this charge are:

    1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
    As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN.
    Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed. Schedule 4 paragraph 9 stipulates as mandatory that a PCN must:

    ''specify the total amount of those parking charges that are unpaid, as at a time which is— (i) specified in the notice; and

    (ii) no later than the end of the day before the day on which the notice is...sent by post...''.


    From the pcn I can only see that, that the car stayed for a certain amount of time and that the contravention was 'either/or' an overstay or failure to pay. This does not give any clarity of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event.

    This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

    These are the omissions:
    ''9(2)The notice must—
    (b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
    (c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
    (d)specify the total amount of those parking charges that are unpaid...'
    NTK is not compliant, for example re this requirement:

    The NTK specifically fails on all counts. There are no 'parking charges' stipulated that 'remained unpaid' on the day of this event and no 'facts that made them payable' are given in the PCN (either/or not being sufficient to avoid ambiguity and to comply with the POFA 2012 or the 'test of transparency' required in Contract law).


    2) The PCN arrived 28 days after the event.

    The alleged date of the incident was 25/07/2016. The PCN arrived on the 22/08/2016 which is 28 days later. No date of posting appears on the PCN and no proof of posting has been supplied. The 'date issued' is never the date of posting with ParkingEye because they stockpile their post for later batch-issue by a third party provider and ParkingEye are undoubtedly fully responsible for that choice (they have shown Bank Holidays and even Christmas Day as their 'date issued' in the past, then actually posted the NTK ten days later).

    It is a fact that the PCN arrived far too late for 'keeper liability'. ParkingEye must have posted it in the week commencing 15.8.16 and I put them to strict proof (from their Whistl or iMail records) if they disagree. If they are silent on any point made by an appellant, it is deemed accepted.

    POFA paragraph 9 states
    (5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

    (6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

    According to POFA as stated above the PCN was served too late for keeper liability.


    3) 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.''


    4) No landowner authority

    Section 7 of the BPA CoP states that an operator must have the written authorisation of the Landowner, if the parking company does not own the land, which Parking Eye do not.

    Paragraphs 7.1 & 7.2 dictate some of the required contract wording. I request Parking Eye provide proof of the contract terms with the actual landowner (not another agent, shop, etc) and I would also point out these mandatory requirements, which a vague ‘witness statement’ will not prove:

    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
    I do not believe that Smart Parking have a contract with the site landowner which meets all the requirements above and even if they do, the contract breaches the EA 2010 if indirect discrimination arises as a result of any inflexible point of policy.


    5) 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. The tariffs are prominent but the alleged 'parking charge' is far less clear.


    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"

    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:

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

    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 with too many words and 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.

    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 smaller print than the tariffs (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:

    "archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm"

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

    "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:

    "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 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:

    "bailii.org/ew/cases/EWCA/Civ/2000/106.html"

    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.


    6) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis


    It appears that a partial registration number may have been recorded, either by inadvertent error of the disabled/elderly driver, or by failure of the operator's own keypad, or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. No evidence has been produced either way by this operator as to the cause of the issue and it is not disputed by any party that there was certainly no attempt to avoid payment, which according to the complex signage, we contend was paid in full.

    This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

    Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

    At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

    ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome.

    The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148:

    “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

    And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

    At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:

    ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

    This is NOT a 'more complex' case by any stretch of the imagination.

    At 32, it was held that a trader, in this case a parking company:
    ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    Clearly a charge out of all proportion to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

    The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

    - the signage failed to make any obligation and/or risk of penalty prominent. to enter the FULL VRN. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

    - Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

    As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.


    7) It was also apparent on this day that the were issues with one or more of the parking machines.

    Numerous people were complaining about incorrect tickets being printed, or simply that no tickets were being produced – this seemed to be intermittent and with the lack of onsite staff, this was causing a lot of doubt and lack of confidence in the machines to accurately record and print information.

    I require the operator to produce the phone logs to Parking eyes are checked from the day in question – the volume of calls to the help line from this site will be apparent. This adds – and also add reason to doubt the integrity of the information supplied by Parking Eye, especially as they have failed to tell us if this was a case of an alleged (unspecified) underpayment or a failure with their machines and/or keypads to record payments and properly issue P&D tickets.
    Last edited by Coupon-mad; 21-09-2016 at 10:28 PM.
    PCN in a private car park in England/Wales? DON'T PAY IT BUT DO NOT IGNORE IT

    USE THE 'FORUM JUMP' ON RIGHT, GO TO THE PARKING TICKETS FORUM. READ THE 'NEWBIES' THREAD.
    Do NOT read old advice to ignore, unless in Scotland/NI.

    • Timeliegh
    • By Timeliegh 22nd Sep 16, 8:54 AM
    • 14 Posts
    • 7 Thanks
    Timeliegh
    Dam Goupon-mad - THANK YOU!!!!!!
    • Timeliegh
    • By Timeliegh 22nd Sep 16, 11:09 AM
    • 14 Posts
    • 7 Thanks
    Timeliegh
    Got his back from Newquay council

    Dear Mr Leigh



    Thank you for your email.



    Unfortunately, Newquay Town Council has no jurisdiction over parking arrangements in the town. The Unitary Authority, Cornwall Council, owns all the public car parks locally and, in so doing, sets the parking charges and carries out enforcement of those and has been lobbying and campaigning for a number of years for such changes. In much the same way, private car parks such as the one on Tower Road, are operated and enforced by the landowner or its agent.



    The Town Council would dearly wish to have more authority and control in order to avoid experiences such as yours. As things stand, however, we can do little other than to express frustration at your, seemingly, unreasonable treatment. Newquay Town Council and the wider business community work tirelessly together to promote the town in a positive light and lay the foundations for a holiday destination that visitors enjoy and wish to repeat. Experiences such as yours conspire against all the hard work we undertake.



    To answer your other questions – the Town Council is not aware of any planning applications recently regarding the use or installation of ANPR cameras (or signage). However, Cornwall Council is the planning and licensing authority – we are only consultees and so it would be prudent to check with them, as the responsible authority.



    We would also ask you to lodge a complaint with Cornwall Council for completeness.



    Again, we are sorry to hear of the issues you have had with this operator and we hope it does not deter you from returning to Newquay in the future.



    Yours sincerely,



    Andrew Curtis
    Town Clerk & Responsible Financial Officer
    • Castle
    • By Castle 22nd Sep 16, 11:53 AM
    • 953 Posts
    • 1,130 Thanks
    Castle
    I did a search on the Cornwall planning register and couldn't find any applications for planning permission for the cameras nor any applications for advertising consent for the signs at any car park on Tower Road, Newquay.
    http://planning.cornwall.gov.uk/online-applications/?utm_source=website&utm_medium=planningregisterlin k&utm_campaign=planning
    (There are also no applications for Fistral Beach for either PE or Smart Parking)
    • Timeliegh
    • By Timeliegh 22nd Sep 16, 2:36 PM
    • 14 Posts
    • 7 Thanks
    Timeliegh
    I did a search on the Cornwall planning register and couldn't find any applications for planning permission for the cameras nor any applications for advertising consent for the signs at any car park on Tower Road, Newquay.
    http://planning.cornwall.gov.uk/online-applications/?utm_source=website&utm_medium=planningregisterlin k&utm_campaign=planning
    (There are also no applications for Fistral Beach for either PE or Smart Parking)
    Originally posted by Castle
    Brilliant stuff - Thanks
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