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  • FIRST POST
    • AngelHarmony
    • By AngelHarmony 19th Apr 17, 11:26 PM
    • 28Posts
    • 27Thanks
    AngelHarmony
    Parking Eye PCN at Derby & Burton Services
    • #1
    • 19th Apr 17, 11:26 PM
    Parking Eye PCN at Derby & Burton Services 19th Apr 17 at 11:26 PM
    I'm really hoping for some help please? I've been through lots of pages/posts including the Info for Newbies but I think I'm just tying myself in knots!

    At the beginning of last month I stopped at Derby & Burton Services. I know this service area fairly well as I used to live just a few minutes away from it. It's a large site with a wonderful food pub at one end, in the middle there's a fuel station with a KFC restaurant & drive-through & 3 other units that have varied since it opened. At the other end there's an Ibis Budget Hotel.

    I'm registered disabled, was tired & I just wanted a drink (from my flask), some fresh air & to let my dog out to stretch her legs. The first quiet area I spotted which also had grass was by the far end of the hotel so I parked there. With the exception of the food pub which has some shrubbery around it, the rest of the large car park is an open one. After half an hour I was back on my way home.

    Imagine my shock when a fortnight later I received a Parking Charge Notice for £60!! (It includes photo's of me arriving & leaving) Apparently "the car park is private land, only for authorised hotel guests/patrons only along with other terms & conditions of the car park". I know I was parked by the far end of the hotel but I didn't see any signs & definitely no boundary areas to say I wasn't allowed to park where I was. As far as I'm concerned, disabled needing a rest or not, I always thought a service area is supposed to be a place to get rest, food, drink, fuel etc., after all there are signs everywhere to take a break & not drive tired!!

    Although after receiving the PCN I looked on here as well as the motorway services online website to see who to contact about cancelling the PCN. I've then not been well over the last week so it was completely forgotten about until this morning when I received a second PCN telling me I now have 14 days to pay £100 & because I didn't appeal within 28 days of the date of the original PCN then I have no further right to appeal!!

    I've spent the day going through the forum but really don't know;

    a) exactly who to appeal to?
    b) can I appeal with any part of the DDA? (I've seen some others on here have)
    c) how to word my letter correctly? (I'm especially struggling with this)

    I'd be so very very grateful for some help/advice please.

    Many thanks in advance
Page 2
    • Redx
    • By Redx 5th Jul 17, 11:05 PM
    • 15,159 Posts
    • 19,102 Thanks
    Redx
    that reads more like a witness statement , no good for a popla appeal
    DO NOT put any of your above post into a POPLA appeal

    for popla you need LEGAL ARGUMENTS based on the templates from post #3 of the NEWBIES sticky thread , these will include arguments like

    no landowner contract
    poor and inadequate signage
    NTK failures
    BPA CoP failures
    POFA2012 issues or failures
    not the same as the BEAVIS case

    etc

    also look at other RECENT popla appeals so you see how they are structured and laid out
    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
    • AngelHarmony
    • By AngelHarmony 5th Jul 17, 11:25 PM
    • 28 Posts
    • 27 Thanks
    AngelHarmony
    I've done ALL that has been recommended but because every post on all the points you mention reads differently I don't know what I should or shouldn't copy? As for templates, I must be the thickest person to come on here because I see lots of mention of templates but the links take me to other posts!?! I've done countless searches but either keep going round in the same old circles or get nothing!! I know my brain is damaged (seriously!) but I honestly didn't realise quite how bad until doing my DLA to PIP & this!! Still waiting on PIP but as my 28 days is now up for POPLA I'm guessing my next step will be court??

    Thanks though
    • Redx
    • By Redx 5th Jul 17, 11:51 PM
    • 15,159 Posts
    • 19,102 Thanks
    Redx
    you have a notional 33 days for popla , the 28 days is their guide but in practice the code works for up to 33 days

    up to now you havent attempted to put together a POPLA appeal based on the posts of others (yes those are the example templates) and you should be choosing and copying the various points I listed for a popla appeal

    as you have NOT done what you were asked to do then you have not done ALL of what you were asked to do , because your post above is NOTHING LIKE those other examples of popla appeals

    at the moment you are giving us the classic "push back" instead of doing as we have asked you to do

    I will link you to one recent POPLA APPEAL so you get an idea of what a POPLA APPEAL looks like

    http://forums.moneysavingexpert.com/showthread.php?t=5669653&page=2

    and yes , it could be court if you dont do this, and your defence will be much harder than a popla appeal

    you need to remember that nobody is asking you to describe what happened on the day , assume you werent there and are cobbling together legal appeal points (and not a story) for a "defence"

    so not an account of what happened (like you posted above) , and not mitigation either , because neither will win at popla and possibly not in court either

    nobody will write this for you, but once you have pasted your draft on here people will help you fine tune it , like you see in several recent threads with similar PARKING EYE POPLA APPEALS

    put those 4 words into the drop down forum search box and you will find several recent appeals you can crib from
    Last edited by Redx; 06-07-2017 at 12:03 AM.
    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
    • AngelHarmony
    • By AngelHarmony 6th Jul 17, 1:02 AM
    • 28 Posts
    • 27 Thanks
    AngelHarmony
    I HAVE done what was asked with the exception of copying & pasting all the legal paragraphs because although I thought signage & landowner reasons could be used, every post is very different & I couldn't find what I personally know as a template that I thought would list them.

    It was from reading other people's POPLA appeals that I started my rubbish response with what I did, i.e., I thought I still had to give a reason for my appeal? I didn't know what paragraphs to copy & paste because other than the layout of this particular car park & fairly rubbish signs & the free 2 hours services parking without having to purchase, I have no other defense.

    As for my searches, Google/Chrome actually saved these & they were; ParkingEye POPLA Appeal; POPLA Appeal Parking Eye; POPLA Appeal; ParkingEye Derby Services & ParkingEye POPLA Derby Services (I've copied & pasted them!) & everyone was searched several times!

    I did find the thread you posted the link for but a combination of it being a different parking company & mention of the Beavis case (which for some reason I thought could no longer be mentioned?) & with not being subscribed to it I didn't see the last post tonight.

    I'm sorry you think I'm "classically pushing back"!! I'm just extremely frustrated because I've had no broadband to get back on here & try to get my stupid brain around it all & now I have to pray that my POPLA code does stay active for another 4-5 days!! I'm also frustrated because I can't seem to get my brain around this as I used to be a lot more intelligent!!

    I DO appreciate the advice given & I can only apologise at my frustration.

    Thanks
    • AngelHarmony
    • By AngelHarmony 6th Jul 17, 1:07 AM
    • 28 Posts
    • 27 Thanks
    AngelHarmony
    Apart from us being charged by different companies, on re-reading the updated post of Rebecca1811 I think our reasons for appeal are identical? Is it likely that this will be acceptable?? Many thanks in advance xx


    Dear POPLA Assessor,

    Parking Eye Parking Charge Notice No.: ____________
    Vehicle Registration Number: ____________

    POPLA Reference number: ____________

    As keeper of the above vehicle I wish to appeal the recent Parking Charge Notice received from Parking Eye on the following grounds;

    1. Poor and inadequate signage
    2. No evidence of landowner Authority
    3. The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.
    4. Amount demanded is a penalty.


    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 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.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

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

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

    Parking Eye Car Parks’ signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside the car park.
    It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.
    In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

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

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

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

    and Paragraph 69: Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.
    Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

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

    Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
    (a) the commercial practice omits material information,
    (b) the commercial practice hides material information,
    (c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
    (d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,
    and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''
    It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.

    4.Amount demanded is a penalty

    Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

    I await your reply.

    Yours faithfully

    Xxxxx Xxxxxxx
    Last edited by AngelHarmony; 06-07-2017 at 10:04 PM.
    • AngelHarmony
    • By AngelHarmony 6th Jul 17, 10:10 PM
    • 28 Posts
    • 27 Thanks
    AngelHarmony
    Is the above likely to be accepted? Many thanks in advance for all of the help & advice xx
    • Umkomaas
    • By Umkomaas 6th Jul 17, 10:35 PM
    • 14,021 Posts
    • 22,026 Thanks
    Umkomaas
    Is the above likely to be accepted? Many thanks in advance for all of the help & advice xx
    Originally posted by AngelHarmony
    This is a checklist that I use to remind POPLA appellants of the areas they need to consider in developing their draft appeal. Using most/all of these gives the PPC an uphill task to prove 100% that they have an unassailable case against the motorist:

    1. No keeper liability, including Notice to Keeper errors (PoFA 2012)
    2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
    3,,No Contract to manage parking
    4. No Locus Standi
    5. Signage
    6. Consumer Rights Act 2015
    7. BPA Code of Practice breaches
    8. Why Beavis doesn't apply in your parking event
    I think there's scope for you to at least consider adding appeal points on #2 (there's a template in the NEWBIES FAQ sticky, post #3 to copy and paste) and #8 (as PE will no doubt crow about their win against Barry Beavis), search other recent PE POPLA appeal threads and lift an appeal point on this. #5 above might also be worth a look at. Again lift from another thread.

    You won't lose Brownie points at POPLA if any appeal point is not appropriate, but it will mean PE has to go to work on rebutting each and every one, all you need to do us win on one single point, then it's game over, in your favour. They have to win on every single one!

    That's why we see many PE POPLA appeals won because PE can't cope with the volume of the detail without devoting disproportionate resources to do so, so cut their losses and don't contest a 'kitchen sink' appeal.

    Not my ideal way if winning, would prefer the rapier to the bulldozer to inflict damage, but the bulldozer has the greater edge at the moment. So ........
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    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.
    • AngelHarmony
    • By AngelHarmony 9th Jul 17, 4:04 PM
    • 28 Posts
    • 27 Thanks
    AngelHarmony
    Parking Eye POPLA Appeal
    Unfortunately I've another 2 days offline so am now on day 32 & praying that my POPLA code is still open & that this re-done POPLA appeal draft is good enough?? Very many thanks in advance xx


    Dear POPLA Assessor,

    Parking Eye Parking Charge Notice Number: ____________
    Vehicle Registration Number: ____________

    POPLA Reference number: ____________

    I am the registered keeper and I wish to appeal a recent parking charge from Parking Eye Ltd,. The charge is levied despite the driver not being identified.

    1. Poor and inadequate signage
    2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
    3. No evidence of landowner Authority
    4. The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.
    5. Amount demanded is a penalty.
    6. Highway's Agency circular 01/2008


    1. Parking Eye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park but their own images of the vehicle included on the PCN disprove this because no signage is visible in said images. 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 any 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 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. 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 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 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 cannot transfer the liability for the charge using the POFA.

    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 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 un-redacted 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

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

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

    Parking Eye Car Parks’ signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside the car park.
    It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.
    In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

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

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

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

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

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

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

    5. Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.

    6. Highway's Agency circular 01/2008
    Although on this occasion the driver had no reason to purchase anything from the services, the driver was still a customer of the facility by being there. There is no requirement to purchase anything from a services & as per Highway's Agency circular 01/2008 which says that such areas should provide at least: Fuel, Hot drinks and hot food, Indoor seating, 2 (Two) hours free parking, Free toilets and baby-changing facilities.
    • Coupon-mad
    • By Coupon-mad 9th Jul 17, 4:19 PM
    • 48,883 Posts
    • 62,386 Thanks
    Coupon-mad
    am now on day 32 & praying that my POPLA code is still open
    It will be, today being Sunday. They don't stop them until the next working day (this time tomorrow might be too late but today you should find it works, in fact you can test it now on a dummy run, takes seconds).
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Redx
    • By Redx 9th Jul 17, 4:24 PM
    • 15,159 Posts
    • 19,102 Thanks
    Redx
    well done , now THAT looks like a popla appeal , so if you dont get any critique about amending it , submit it , after checking for obvious errors (use OTHER and upload it as a pdf)

    and do me a favour , compare that to the witness statement you posted previously , and you will see how different a beast it actually is

    you went from bottom of the class to near the top , proving people can do it if they put some time and effort into it

    win or lose, I applaud you for sticking with it despite the justified knock backs we gave you (a kick up the backside sometimes works)

    good luck with it
    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
    • AngelHarmony
    • By AngelHarmony 9th Jul 17, 4:32 PM
    • 28 Posts
    • 27 Thanks
    AngelHarmony
    Ok I put my POPLA code in & it's giving me 5 options as grounds for appeal so I'm hoping that means it's currently still open?

    Do you think the essay above is sufficient/good enough? Very many thanks in advance xx
    • AngelHarmony
    • By AngelHarmony 9th Jul 17, 4:39 PM
    • 28 Posts
    • 27 Thanks
    AngelHarmony
    Thank you so very much xx I genuinely wasn't very well last week & it seemed I couldn't see through the mist & I was just tying myself up in knots!! (I'm not normally such a stroppy moo!!) My head is most definitely a lot clearer today Thanks so much again xx
    • Coupon-mad
    • By Coupon-mad 9th Jul 17, 4:56 PM
    • 48,883 Posts
    • 62,386 Thanks
    Coupon-mad
    Ok I put my POPLA code in & it's giving me 5 options as grounds for appeal so I'm hoping that means it's currently still open?

    Do you think the essay above is sufficient/good enough? Very many thanks in advance xx
    Originally posted by AngelHarmony
    Yes that's still open, choose 'OTHER' only (as we always advise).

    I think you should replace this #2 entirely (the whole section) because they know it was you driving, from your appeal:
    2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
    I would replace it with the fact there is no evidence at all that the car was parked somehow in the 'wrong place' and that Roadway Service Areas such as this one, must by law, offer 2 hours free parking. That time was not exceeded and no evidence of where the car stopped within this Services, has been shown. Put them to strict proof of where the car was actually parked, not just an aerial view of what signs might be where, actual proof of where the car was (they will fail).

    I would also add another quick point that you are disabled (don't say 'registered disabled', I hate that misunderstanding! You are not 'registered' and nor do you want to be...) . State that you are entitled to reasonable adjustments under the Equality Act 2010 and have a legal right not to be harassed for taking a break due to your needs (no mention of the dog unless it is an assistance dog).

    Screenshot a scan of your Blue Badge for POPLA and PIP letter if you wish, to really push the fact that you are disabled under the EA (even though POPLA don't want to hear it, PE might cancel in the end due to this as they won't want to sue you).
    Last edited by Coupon-mad; 09-07-2017 at 4:58 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • AngelHarmony
    • By AngelHarmony 9th Jul 17, 5:09 PM
    • 28 Posts
    • 27 Thanks
    AngelHarmony
    Thanks Coupon-mad I did wonder about the driver section as I knew I'd given myself away at the first appeal. I'd also wondered about mentioning being disabled. At the moment I'm still officially on an "Indefinite DLA" award (currently waiting for dreaded decision letter on being switched to PIP) so I'll scan that into my laptop too. I'll re-post my hopefully final draft shortly.

    Thanks so very much again for your help xx
    • Coupon-mad
    • By Coupon-mad 9th Jul 17, 5:33 PM
    • 48,883 Posts
    • 62,386 Thanks
    Coupon-mad
    I think it's important to put PE to strict proof of where the car was parked, because they will fail on that point - they have no evidence.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • AngelHarmony
    • By AngelHarmony 9th Jul 17, 6:09 PM
    • 28 Posts
    • 27 Thanks
    AngelHarmony
    POPLA Appeal - Final Draft??
    Ok so I've switched #2 & added about being disabled. Hopefully this is now ok? Many thanks in advance xx

    * * * * * * * * * * * * * * * * *

    Dear POPLA Assessor,

    Parking Eye Parking Charge Notice Number:
    Vehicle Registration Number:

    POPLA Reference number:

    I am the registered keeper and I wish to appeal a recent parking charge from Parking Eye Ltd,. The charge is levied despite the driver not being identified.

    1. Poor and inadequate signage
    2. Roadway Service Area’s - Highway's Agency circular 01/2008
    3. No evidence of landowner Authority
    4. The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.
    5. Amount demanded is a penalty.
    6. Equality Act 2010


    1. Parking Eye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park but their own images of the vehicle included on the PCN disprove this because no signage is visible in said images. 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 any 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 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. Roadway Service Area’s - Highway's Agency circular 01/2008
    Parking Eye have failed to provide any evidence at all that the car was parked in the wrong area of this large, open, Roadway Service Area’s car park. In accordance with the Highway’s Agency circular 01/2008, Roadway Service Area’s must by law provide at least: fuel, hot drinks and hot food, indoor seating, 2 (Two) hours free parking, free toilets and baby-changing facilities. As the car is recorded leaving the car park 34 minutes after entering then the time was not over stayed.
    Although on this occasion the driver had no reason to purchase anything from the services, the driver was still a customer of the facility by being there. There is no requirement to purchase anything from a service area.


    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 un-redacted 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

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

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

    Parking Eye Car Parks’ signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside the car park.
    It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.
    In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

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

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

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

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

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

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

    5. The amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read and then consider the signage and decide whether to accept or not. In this case the signage was neither clear nor ample, and the motorist had no time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.
    6. As a disabled person then under the Equality’s Act 2010 I’m entitled to reasonable adjustments as well as a legal right not to be harassed for taking a break due to my personal needs. I include copies of both my current Disability Living Allowance entitlement letter & my Blue Badge.
    • Coupon-mad
    • By Coupon-mad 9th Jul 17, 6:24 PM
    • 48,883 Posts
    • 62,386 Thanks
    Coupon-mad
    OK, great as long as the word document you are saving to be a PDF to upload, actually shows the BBadge and DLA letter embedded as photos in the document itself, at the end (not uploaded separately, have it all in one document).

    The only thing I would add would be a suggestion of the sign you saw at the entrance to the Services, which would have been like this:

    http://3.bp.blogspot.com/-weMmuKKSi-c/UqLSr6-B7LI/AAAAAAAABgQ/4kUsXDxN1Fk/s1600/entrance.png

    So I would embed that picture (not use the link, actually embed photos) into your word document here:

    2. Roadway Service Area’s - Highway's Agency circular 01/2008 - 2 hours free parking is a legal requirement set by Parliament
    Parking Eye have failed to provide any evidence at all that the car was parked in the wrong area of this large, open, Roadway Service Area’s (RSA) car park. In accordance with the Highway’s Agency circular 01/2008, RSA's must by law provide at least: fuel, hot drinks and hot food, indoor seating, 2 (Two) hours free parking, free toilets and baby-changing facilities.

    As I recall, the entrance sign seen at this RSA looked like this BPA template:

    <embed the image I linked above>

    As the car is recorded leaving the car park 34 minutes after entering then the time was not over stayed. Although on this occasion the driver had no reason to purchase anything from the services, the driver was still a customer of the facility by being there. There is no requirement to purchase anything from a service area and I merely stayed to stretch my legs and rest from driving, and left well within the statutory two hours required to be offered in any RSA.
    Last edited by Coupon-mad; 09-07-2017 at 6:26 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • AngelHarmony
    • By AngelHarmony 9th Jul 17, 8:49 PM
    • 28 Posts
    • 27 Thanks
    AngelHarmony
    I've done all of the above including embedding the photo's in which turned out fine when I converted my Word document to a PDF. I've ticked the relevant boxes with POPLA & attached the PDF so now to keep everything crossed whilst I wait!!

    Thanks so very much to you Coupon-mad & Red-X for all of your help
    • The Deep
    • By The Deep 9th Jul 17, 9:27 PM
    • 6,846 Posts
    • 5,865 Thanks
    The Deep
    Even if PE were to contest this and win, it is not likely to be a big deal. IMO they would be insane to take you to court, where mitigation can and is considered by a judge.

    You say that you have MS, you could turn up in court in a wheelchair with a carer and really milk it. A judge would have to have a heart of stone to find against you.
    You never know how far you can go until you go too far.
    • AngelHarmony
    • By AngelHarmony 14th Jul 17, 6:36 PM
    • 28 Posts
    • 27 Thanks
    AngelHarmony
    Reply from POPLA
    I've just received a reply from POPLA with a link to the evidence that PE have submitted. The 63 pages of evidence consists of all of our correspondence then several pages of photo's of the current signage, a layout map of the current signs & those which are planned to be put up shortly!!

    It seems that the spaces near & by the hotel are only for hotel guests which I wasn't. I didn't know that as that part of the car park doesn't have a boundary like the food pub at the other end of the services. On looking at their signage layout map, where I entered the car park & parked there is a patron only sign up a pole that I'd have driven passed but none that I'd have seen without walking over to one (which I didn't as due to the heavy wind & rain I walked down the side of the hotel as it was sheltered) yet surprise surprise there's soon to be a lot of new signs including exactly where I parked & they appear that they're going to define the hotel boundary with signs where their ANPR camera's are!! (If PE do go ahead with this plan then I can a lot of people getting caught out!)

    Talking of their ANPR camera's, in the evidence they've submitted, there are 2 entrance & 2 exit photo's of my car where as they only showed 1 in & 1 out in their original letter, is that correct?

    Should I now submit further comments to POPLA? Is it worth trying to explain where I was parked?

    Cheers
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