Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • mendosas_enemy
    • By mendosas_enemy 6th Oct 16, 11:15 AM
    • 17Posts
    • 10Thanks
    mendosas_enemy
    Please Help...Parking Eye Charge Mostyn Champneys Retail Park, Llandudno
    • #1
    • 6th Oct 16, 11:15 AM
    Please Help...Parking Eye Charge Mostyn Champneys Retail Park, Llandudno 6th Oct 16 at 11:15 AM
    Hi All,

    Please can you help with my claim against Parking Eye charge received for Mostyn Retail Park, Llandudno?

    I have been given a POPLA Reference to make appeal, however, I am unsure how to go about this now as thus far, I have used a template and feel a little over my head now (I had hoped the first claim would close this off).

    I stayed in the 3 hour parking and over run by 51 minutes, now, I do accept that this is a significant time over, however, I don't accept that this charge is of a valid amount and is in line with any loss of revenue, especially considering the time. In my ignorance, I almost thought because this was out of peak times I would be okay.
    I took my Mum for some food and shopping and we spent some time in the McDonald's (I know I'm a big spender), however, she does have fibromyalgia and at takes her a very long time to move about and we couldn't walk far for food. Now, we don't have a disabled badge because we don't live together. We do visit every one to two months. Could this be a valid claim, I should be able to provide evidence if asked but I do live some distance from her to collect.

    I have included a copy of letters and my original appeal letter. Thank you in advance.

    Andrew
Page 2
    • mendosas_enemy
    • By mendosas_enemy 13th Oct 16, 6:15 PM
    • 17 Posts
    • 10 Thanks
    mendosas_enemy
    Am I right in saying I need to appeal based on signage and can I use the template you provided- post number 2343 I think it was?
    If it helps, I have checked street view. I was parked in the bay next to the Blue car, bottom right (not the BMW). The weather is typical for that area and time, very low light and visibility. Signs are Yellow with Black text fair high up.

    • mendosas_enemy
    • By mendosas_enemy 13th Oct 16, 6:18 PM
    • 17 Posts
    • 10 Thanks
    mendosas_enemy
    [IMG]/img.photobucket.com/albums/v365/mendosas_enemy/Screen%20Shot%202016-10-13%20at%2016.43.29.png[/IMG]
    • mendosas_enemy
    • By mendosas_enemy 13th Oct 16, 7:57 PM
    • 17 Posts
    • 10 Thanks
    mendosas_enemy
    Thank you for understanding and your help thus far.

    I have amalgamated the two templates you provided for 'Genuine customer' exemption criteria un-evidenced and not explained to drivers'. and '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' and have indexed them on my letter as such.

    I have included the below statement's- 'I have enclosed a copy of my bank statement, confirming proof of purchase, which, is acceptable evidence under the Consumer Rights Act'. This appears to be the evidence Parking Eye rejected.

    'On the 06/10/2016, I also discussed this charge notice with the assistant store manager of the McDonald’s store, who, I understand has also filed a formal appeal to prevent any impact to current and future business sales'.

    Will this all now be sufficient? I really do struggle for the time and to dedicate anymore will be nearly impossible due to me working this weekend. Thank you in advance.
    • Umkomaas
    • By Umkomaas 13th Oct 16, 9:06 PM
    • 11,007 Posts
    • 16,424 Thanks
    Umkomaas
    I also discussed this charge notice with the assistant store manager of the McDonald’s store, who, I understand has also filed a formal appeal
    Presumably before getting back to frying his chips?

    Will this all now be sufficient? I really do struggle for the time and to dedicate anymore will be nearly impossible due to me working this weekend.
    Hopefully - as a minimum - sufficient for a rejection of your appeal and the provision of a POPLA appeal code. Don't expect a cancellation from your initial appeal.

    You will need to devote more time to researching POPLA appeals in the next 4-5 weeks in order to kill this off. PE are nasty-litigious.
    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 13th Oct 16, 11:39 PM
    • 40,507 Posts
    • 52,398 Thanks
    Coupon-mad
    She is at POPLA stage already.

    @mendosas_enemy you also need to just add the 'no landowner authority' one. Please take your time within your 30 days to get this right.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

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

    • mendosas_enemy
    • By mendosas_enemy 14th Oct 16, 8:30 AM
    • 17 Posts
    • 10 Thanks
    mendosas_enemy
    Thank you, I have added the no landowner authority one. Indexed all three points at the top of the letter and included the additional above information about proof of purchase and store manager contact. Am I right in saying I only need to send the evidence of proof of purchase and not send any of the medical evidence about my Mum?
    • Coupon-mad
    • By Coupon-mad 14th Oct 16, 10:19 AM
    • 40,507 Posts
    • 52,398 Thanks
    Coupon-mad
    POPLA will not take mitigating circumstances into account anyway - they are looking merely to see if the PCN was 'properly given' (in their opinion, which is NOT binding on you if you lose!) so no need for medical evidence.

    Don't send this by post, do it online under 'OTHER' as a complete PDF with the POPLA code & your name & address at the top. So you can if you wish, embed your receipt as proof to illustrate your point within the 'genuine customer exemption' point of appeal. It's better than separately attaching a scan IMHO, looks better for the Assessor to see the receipt within the point it relates to.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

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

    • mendosas_enemy
    • By mendosas_enemy 14th Oct 16, 5:05 PM
    • 17 Posts
    • 10 Thanks
    mendosas_enemy
    Thank you, I never thought to do that- so much to learn about these things. I feel this is 100% already than my original letter. Will this be good to send over the weekend now? Scared to miss this deadline.
    • Coupon-mad
    • By Coupon-mad 14th Oct 16, 5:38 PM
    • 40,507 Posts
    • 52,398 Thanks
    Coupon-mad
    Can you copy & paste it here for others to see? I know you've admitted to driving so you can't use 'no keeper liability as we normally would.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

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

    • mendosas_enemy
    • By mendosas_enemy 16th Oct 16, 1:18 PM
    • 17 Posts
    • 10 Thanks
    mendosas_enemy
    Parking Charge Notice-
    POPLA reference-
    Registration-

    1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

    2. Genuine customer' exemption criteria un-evidenced and not explained to drivers.

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


    1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

    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:

    http://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:

    http://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:

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

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

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

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

    ...and the same chart is reproduced here:

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

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

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

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

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

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




    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


    2. Genuine customer' exemption criteria un-evidenced and not explained to drivers.


    This parking operator offered parking to shoppers of the retailers. It is not disputed that the occupants of the car were genuine shoppers. Notwithstanding that the driver has not been identified, we supplied receipts with the first appeal because I understand from my research of other cases, that this operator supplies a 'User Manual' or 'Site Manual' to all retailers which allows for 'genuine customers' to have their charges cancelled (regardless of whether a shopper overstayed) if the customer complains and show receipts.

    It is noted that the contractual terms on the signage fail to advise customers of this secret clause or the ceiling of 'total spending' above which a parking charge will be cancelled, so visitors have no way of knowing these terms.


    This evidence is vital because the operator rejected my appeal on the following basis, yet I have reason to believe the charge should have been cancelled:

    ‘You have provided evidence of purchase. However, please be advised that this did not meet the discretionary criteria set by the landowner in this case. We are therefore writing to advise that your recent appeal has been unsuccessful and you have now reached the end of the internal appeals procedure. This is because you have not provided sufficient evidence to show that you did not break the terms and conditions on the signage.’

    So what is 'sufficient evidence'? A receipt for £10, or £50, or one from each store but with a higher spend than we showed them? ParkingEye are silent on the 'secret exemption clause' figure and have made my position impossible at appeal stage by not disclosing to customers what that 'discretionary criteria' is. Because of this, neither POPLA nor I can judge whether they have correctly applied it.


    I contend that the occupants of the car did spend enough in the retailers for the PCN to be cancelled (copy receipts attached as proof of this submission) and if the operator disagrees I require sight of the full 'discretionary criteria' clause from the User Manual which forms a vital part of their contract with the landowner and agreement with the retailers. This will need to be a true copy and show the circumstances under which the operator will cancel a charge for a genuine customer, including any defined total spend limit where the clause applies.

    I have enclosed below a copy of my bank statement, confirming proof of purchase, which, is acceptable evidence under the Consumer Rights Act.



    On the 06/10/2016, I also discussed this charge notice with the assistant store manager of the McDonald’s store, who, I understand has also filed a formal appeal to prevent any impact to current and future business sales.

    POPLA please note: this is NOT a point of mitigation, this is a case of this operator failing to evidence that they have correctly applied the 'criteria' (whatever it might be) in the site/User Manual and if they cannot evidence that they did, then the parking charge cannot be considered 'properly given' at the point of refusing my appeal. A Site/User Manual sets out the criteria under which the parking enforcement operates from the retailers' informational point of view and it forms a vital part of the landowner contract, which, is relevant to this appeal.

    If this operator remains silent on any appeal point then it is deemed accepted.

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

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

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

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

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

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

    7.3 The written authorisation must also set out:

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

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

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

    d who has the responsibility for putting up and maintaining signs

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

    Yours Sincerely,
    • Coupon-mad
    • By Coupon-mad 17th Oct 16, 11:21 AM
    • 40,507 Posts
    • 52,398 Thanks
    Coupon-mad
    You could add two more:




    4. The signs fail to transparently warn drivers of what the ANPR data will be used for.


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

    ParkingEye's signs here failed notify the driver what the ANPR data would be used for (if it was there then it is buried in small print, which is not acceptable nor legible/prominent).

    This is a 'failure to identify its commercial intent', contrary to Consumer law and in breach of the BPA CoP. Specifically missing (or otherwise illegible, buried in small print) is the vital information that:

    (a) ParkingEye intends to obtain DVLA data and then pursue the registered keeper, and

    (b) that the driver's arrival time would be calculated from a point in time on the road outside the car park (whether they enter the site and park, or not) and

    (c) that if a visitor has a protected characteristic (disability, like my Mother's Fibromyalgia) what the process is, to claim more time, in keeping with the usual 3 hours that such a person is allowed by Local Authorities.

    My research for this appeal has revealed that parking firms do sometimes put up a notice inside/outside a store (e.g. at the CS desk or entrance) informing disabled visitors that they may claim exemption or more time by showing evidence of need to store staff, so the VRN is added to the store 'White List'.

    Indeed at Aldi Leyland, this same operator, ParkingEye produced a leaflet actively offering an extra hour and explaining how to apply at the CS desk. I require ParkingEye to explain - why is an extra hour's adjustment for disabled shoppers not offered at this busy retail site? If it is, then it is certainly not transparent. This is also a 'misleading omission of material information' in Contract law.

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

    This is confirmed within the Consumer Rights Act 2015 including at Paragraph 68: Requirement for Transparency

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

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

    A misleading omission of a policy which is there for 'accessibility' reasons, would also be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs):

    http://www.legislation.gov.uk/uksi/2008/1277/contents/made

    Misleading omissions

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

    (a)the commercial practice omits material information,

    (b)the commercial practice hides material information,

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

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

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

    I can state as an absolute fact that we would never have remained on site if we thought my Mother would be penalised and we did not accept the risk nor did I 'agree to' £100 charge! Nor was this a matter that could be resolved (as Mr Beavis was somewhat rudely and inappropriately informed by the Supreme Court) by wearing a watch. This charge in this case offends against Consumer law and Equality law.





    5. ParkingEye are asked to allow a 'reasonable adjustment' under the Equality Act 2010

    I took my Mother for some food and shopping and we spent some time in the McDonald's. However, she does have fibromyalgia and at takes her a very long time to move about and we couldn't walk far for food. This is a long-term debilitating medical condition affecting daily living so my Mother certainly meets the definition of disability within the Equality Act 2010.

    This is not mitigation, it is law. I am aware POPLA for some reason do not apply/consider the Equality Act (surely a breach in itself but that is another matter).

    If POPLA are not minded to uphold this appeal after considering all the facts and evidence, I ask that at the very least, the Lead Adjudicator takes the alternative step of referring the matter back to ParkingEye to reconsider, especially in view of the Equality Act issue and the fact that the retailer has asked this operator to cancel this charge anyway.
    Last edited by Coupon-mad; 17-10-2016 at 11:31 AM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

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

    • mendosas_enemy
    • By mendosas_enemy 17th Oct 16, 11:41 PM
    • 17 Posts
    • 10 Thanks
    mendosas_enemy
    I cannot thank you enough for your help. I have submitted my appeal and included the above information. I will update when a response is received.
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

5,399Posts Today

7,830Users online

Martin's Twitter