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  • FIRST POST
    • boothzor
    • By boothzor 29th Aug 17, 10:59 AM
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    boothzor
    PCN - ParkingEye - Aire street Leeds
    • #1
    • 29th Aug 17, 10:59 AM
    PCN - ParkingEye - Aire street Leeds 29th Aug 17 at 10:59 AM
    Hi guys.

    So driver was working away up Leeds and was staying in Park Plaza which has no parking. Found a car park opposite the train/bus station and the driver must've spent about 15 minutes reading the sign because it wasn't very clear but did say something like chargeable tariff hours 8:00-18:30. As the driver arrived after the stated time he thought it would be okay to leave the van overnight and come back before 8am which he did.

    Few weeks after company gets the PCN for amount of £100.

    I have searched a few threads that people has been fined for staying in the same car park as he did, and most of them had the same problem as him with unclear signage and they were under the same impression.

    Any help would be much appreciated.
    Last edited by boothzor; 02-10-2017 at 6:09 PM.
Page 2
    • boothzor
    • By boothzor 2nd Oct 17, 10:50 AM
    • 28 Posts
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    boothzor
    Thank you for the advice KeithP! That is what I'll do going forward.
    • Coupon-mad
    • By Coupon-mad 2nd Oct 17, 11:43 AM
    • 50,577 Posts
    • 63,953 Thanks
    Coupon-mad
    BTW I have just received a penalty charge notice: Performing a prohibited turn no right turn FML!
    Pepipoo forum will get you off that one...

    http://forums.pepipoo.com/index.php?showforum=30

    No Hotmail email addresses for pepipoo. Register free and post pics of the TFL or Council letter.
    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.

    • boothzor
    • By boothzor 2nd Oct 17, 12:26 PM
    • 28 Posts
    • 5 Thanks
    boothzor
    I have found this POPLA appeal on the forums regarding the same circumstances. But I don't think it is a golden ticket one that deals with POFA and keeper liability.

    Do I need to find a POPLA appeal regarding the same circumstances or any golden ticket ones. I do apologise for all these questions just want to be 100% correct in what I'm doing.

    http://forums.moneysavingexpert.com/showthread.php?t=4833506 Post#17,18

    I am the registered keeper of vehicle reg xxx xxxx and I contend that I am not liable for the parking charge.

    I have researched the matter, taken legal advice and would like to point out the following as my appeal against said charge:

    1) Unclear and misleading signage.
    The driver entered the car park at 19:46 on Friday 22nd November. The car parking notices are poorly lit and are above eye level. The driver noted on the tariff above the ticket machine that chargeable hours were Monday-Friday 8am – 6pm (see photo attached), leading them to believe that their car was parked outside of these hours. The driver returned to the car 36 minutes later.

    I contend that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand.

    I require that the Operator provides documentary evidence and signage map/photos on this point, lighting at night, colours used in cases of driver colour blindness and compare the signs to the BPA Code of Practice requirements.


    2) The charge is a penalty and not a genuine pre-estimate of loss. The £100 charge asked for, far exceeds the cost to the landowner who would have received £0.00 from any vehicles parked as the signage states that charges apply Monday-Friday 8am – 6pm.
    In the appeal Parking Eye did not address this issue, and has not stated why they feel a £100 charge is an appropriate pre-estimate of loss.
    For this charge to be justified a full breakdown of the costs Parking Eye has suffered as a result of the car being parked at the car park is required and should add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, admin, operating costs. parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.

    3) Proprietary Interest
    As the registered keeper I do not believe that Parking Eye has demonstrated a proprietary interest in the land, because they have no legal possession which would give Parking Eye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Parking Eye's lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge.
    The registered keeper believes there is no contract with the landowner/occupier that entitles them to levy these charges and to pursue them in the courts in their own name as creditor. Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant. Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.
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    #18 17th Dec 13, 8:53 PM
    Also - I would add this under the GPEOL point (2)....

    This charge from ParkingEye as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. And in my case this was a free car park with no payment due whatsoever.

    The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

    ParkingEye and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect ParkingEye might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

    No doubt ParkingEye will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''
    • boothzor
    • By boothzor 2nd Oct 17, 12:28 PM
    • 28 Posts
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    boothzor
    Yes I've just posted a thread on the matter on there now. BTW...... last week... got fined £75.00 for dropping a cigarette end.
    • Coupon-mad
    • By Coupon-mad 2nd Oct 17, 12:29 PM
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    Coupon-mad
    2) The charge is a penalty and not a genuine pre-estimate of loss.
    This tells me you've used an ancient example - please bin it.

    Why not just search the forum for 'ParkingEye POPLA no keeper liability hirer POFA' and 'show POSTS' (never threads).
    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.

    • Coupon-mad
    • By Coupon-mad 2nd Oct 17, 12:30 PM
    • 50,577 Posts
    • 63,953 Thanks
    Coupon-mad
    Yes I've just posted a thread on the matter on there now. BTW...... last week... got fined £75.00 for dropping a cigarette end.
    Originally posted by boothzor
    Covered in other threads - another scam but supported by Councils.
    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.

    • KeithP
    • By KeithP 2nd Oct 17, 12:43 PM
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    KeithP
    Your original post gives too many clues as to who the driver was.

    Suggest you edit it to talk about "the driver", "the keeper".
    There is no place for "I", "me", etc.
    Originally posted by KeithP
    Thank you for the advice KeithP! That is what I'll do going forward.
    Originally posted by boothzor
    Not just 'going forward'.

    You still need to edit your original post.

    PPCs trawl forums like this waiting for people to trip themselves up.
    .
    • boothzor
    • By boothzor 2nd Oct 17, 2:59 PM
    • 28 Posts
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    boothzor
    As the hirer of the above vehicle, I wish to appeal the parking charge notice ParkingEye Ltd issued against the mentioned vehicle. I believe the parking charge notice should be cancelled based on the following grounds:

    1. ParkingEye Ltd has failed to meet the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”)

    2. No evidence that the appellant is the individual liable – No Driver Liability

    3. The signs in this car park are not prominent, clear or legible from all parking spaces, there is no clear delimitations of the car park area and there is insufficient notice of the sum of the parking charge itself,

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



    1. ParkingEye Ltd has failed to meet the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”)

    In order to be able to rely upon POFA to claim unpaid parking charges from a vehicle’s hirer, a private parking company must deliver a Notice to Hirer that fully meets the strict requirements of Schedule 4 of POFA.

    ParkingEye Ltd’s Parking Charge Notice (“PCN”) issued to me on 02/06/2017 failed to comply with these strict requirements and ParkingEye Ltd has therefore forfeited any right to hold me liable for this PCN in their capacity as the vehicle’s hirer.

    The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA, with Paragraph 14 setting out the conditions that the Creditor must meet in order to be able to hold the hirer liable for an unpaid parking charge.

    Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; b) a copy of the hire agreement; and c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as registered keeper)).

    ParkingEye Ltd did not provide me with copies of any of these documents.

    Furthermore, ParkingEye Ltd has failed to comply with Paragraph 14 (5) of Schedule 4, specifically Paragraph 14 (5) (b) which requires that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. ParkingEye’s Notice to Hirer refers the hirer only to the Notice to Keeper itself, not to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that ParkingEye Ltd did not provide me with a copy of the Notice to Keeper as required under Paragraph 14 (2) (a). Consequently, ParkingEye Ltd failed to provide me with much of the information that was required to be included in the Notice to Keeper under Paragraph 9 (2).

    I refer to previous POPLA Case Refs.6060986078 and 6061027318 (amongst others) in which POPLA determined that PCNs issued by ParkingEye Ltd to vehicle hirers are not compliant as a Notice to Hirer for the purpose of POFA.

    For this reason alone, POPLA may reasonably determine that ParkingEye Ltd has no valid claim against me and that the appeal should therefore be up held.

    2. No evidence that the appellant is the individual liable – No Driver Liability

    The operator has not shown that the entity who it is pursuing is in fact the driver who may have been potentially liable for the charge.

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

    In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as they are entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a hirer without a valid NTK.

    As the hirer 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 hirer and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a hirer 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:

    “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 me as hirer 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 Ltd 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. Misleading or unclear signage

    The alleged breach, according to Parking Eye, is in contravention of terms and conditions “clearly displayed at the entrance to and throughout the car park”. It would however appear from perusing Google Earth images (the only option available to the appellant at time of appeal) that the one single small sign at the entrance could not be read fully and properly without stopping.

    The picture of the sign at the entrance, collected from Google Earth, shows a small sign:


    GOOGLE STREET VIEW IMAGE OF ENTERANCE TO CARPARK



    The signs and the machine tariff board were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:

    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.

    It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:

    http://imgur.com/a/AkMCN

    The terms appear to be displayed inadequately at the machine, where only the tariffs are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size. As evidence that this is inadequate notice, Letter Height Visibility is discussed here:

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

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

    ...and the same chart is reproduced here:-

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

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''. ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

    Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'.

    I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. 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.



    Separately, I can find no trace of a decided planning application relating to the Aire Street Leeds car park for the ParkingEye signage and cameras. Assuming that indeed no planning application was submitted or approved, then the signs hold no validity even were they properly sized, properly legible and properly placed.

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

    These signs do not comply with these requirements because the car park signage failed to notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

    Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside/at the site boundary. It is not stated that the cameras are not for security (as one would expect from a mere camera icon) but are there in order to calculate 'total stay' for the purpose of generating profit from PCNs.

    In fact, any reasonable driver would believe that they are authorised to park and rely on their own timekeeping. In circumstances where the terms of a notice are not negotiable (as with car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity in those terms, the rule of contra proferentem shall apply. 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.'

    The driver could never guess that they are responsible for taking into account a period that is somehow back-timed to include a secret timing when the clock started (unbeknown to drivers) from their arrival in moving traffic from the road. Are drivers here meant to be psychic and look at their watch as they drive off the road? If they are, then this must be transparently stated at the entrance and the machine clocks must be set to start a period of parking from arrival, by linking the systems.

    Withholding material information from a consumer regarding the 'time when the clock starts ticking' and the commercial purpose of the ANPR 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/ukdsi/ 2008/9780110811574/contents

    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.''

    4. 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 the operator is to 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 it is suggested 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 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 the operator is put 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.
    • boothzor
    • By boothzor 2nd Oct 17, 3:00 PM
    • 28 Posts
    • 5 Thanks
    boothzor
    Okay so that is a direct copy and paste from another thread: http://forums.moneysavingexpert.com/showthread.php?t=5667536&highlight=parkingeye+popl a+no+keeper+liability+hirer+pofa

    And now im right in thinking I need to adapt it slightly to suit? And that should be okay?

    This is going straight past my head O.o stressed out to the max.
    Last edited by boothzor; 02-10-2017 at 3:25 PM.
    • boothzor
    • By boothzor 2nd Oct 17, 3:54 PM
    • 28 Posts
    • 5 Thanks
    boothzor
    Sorry Coupon-Mad, I must be getting on your nerves but this is flying past my head.
    • Coupon-mad
    • By Coupon-mad 2nd Oct 17, 6:02 PM
    • 50,577 Posts
    • 63,953 Thanks
    Coupon-mad
    We'll all be around later - for now, making the family dinner beckons!
    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.

    • boothzor
    • By boothzor 2nd Oct 17, 6:44 PM
    • 28 Posts
    • 5 Thanks
    boothzor
    We'll all be around later - for now, making the family dinner beckons!
    Originally posted by Coupon-mad
    No problem. Thank you very much again for your help and all others that has taken the time to read and post here.

    Here is another POPLA appeal, I do need to change a few things but before I do, like to know if I am on the right track first. Deleted section 1 on grace periods as I don't think that applies to this case.

    POPLA CODE:
    I am the registered keeper and I am appealing this parking charge from Parking Eye
    at Aire St, Leeds.

    My appeal as the registered keeper is as follows:

    POPLA CODE:
    2.
    No keeper liability

    no adequate notice of the parking charge and this was no
    t one single
    period of parking. Also, the
    parking charges that remained unpaid
    were not described.
    The operator is trying to hold me liable under the POFA Schedule 4 but
    there was no adequate
    notice of any £100 charge, you can see from the machine photos th
    at you can only just make out a
    tariff but there is nothing about £100 and there were no clear signs near t
    he places the driver parked
    which was waste land and any other terms were too high to read or obscured by
    foliage.
    Secondly, Sch4 says the PCN MUST relate to one
    single period of parking
    , yet in fact the driver was
    forced to drive around and re-park at the far end of the car park near a second
    machine, to pay.
    Thirdly, the NTK fails to
    describe the parking charges that remained unpaid
    (tariff).
    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 an
    y 'site agreement' or 'User
    Manual' setting out details including exemptions is key evidence t
    o 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 con
    tracted to merely put
    some signs up and issue Parking Charge Notices, that the agent is also auth
    orised to make contracts
    with all or any category of visiting drivers and/or to enforce the charge i
    n court in their own name.
    Witness statements are not sound evidence of the above, often being pre-
    si
    gned, generic
    documents not even identifying the case in hand or even the site rules. A wit
    ness statement might in
    some cases be accepted by POPLA but in this case I suggest it is unlik
    ely 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 ex
    emption 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 au
    thorised 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 p
    arking 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 parkin
    g
    charges, they must ensure that they have the written authority of the lando
    wner (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 b
    oundaries of the land can be
    clearly defined.
    b any conditions or restrictions on parking control and enforcement op
    erations, 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.

    POPLA CODE:
    4.
    The signs in this car park are not prominent, clear or
    legible from all parking spaces and
    there is insufficient notice of the sum of the parking ch
    arge itself at the machines.
    There was no contract nor agreement on the 'parking charge' at all. It is subm
    itted 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' c
    ase.
    The terms on the machine
    were unreadable and the signs are not the
    brief & prominent
    signs in the Beavis case.
    As evidence that this is inadequate notice, Letter Height Visibility is
    discussed here:
    http://www.signazon.com/help-center/sign-letter-height-visibilit
    y-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 placin
    g a sales advertisement inside your retail
    store, your text only needs to be visible to the people in the st
    ore. 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-Viewin
    g-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 wal
    l
    ''.
    ''...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, placed high on a wall or pol
    e
    ,
    is woefully inadequate in an
    outdoor car park. Given that letters look smaller when high up on a wall or po
    le, as the angle renders
    the words less readable due to the perspective & height, you would have to
    stand right in front of it
    and still need a magnifying glass, for a disabled driver to be able to read
    any terms.
    Under Lord Denning's Red Hand Rule, the charge 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 Prac
    tice, taking all information into
    account, would require a parking charge and the terms to be displayed far more t
    ransparently.
    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 co
    nsumer notice in
    writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it i
    s expressed in plain and
    intelligible language and it is legible.
    So, for this appeal, I put this operator to strict proof of where the c
    ar was parked and (from photos
    taken in the same lighting conditions) how their signs appeared on that d
    ate, at that time, from the
    angle of the driver's perspective. Equally, I require this operator to show how t
    he entrance signs
    appear from a driver's seat - and at BOTH P&D machines - 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 suffici
    ent to disprove this.
    Last edited by boothzor; 02-10-2017 at 6:52 PM. Reason: Forgot to add POPLA Appeal
    • boothzor
    • By boothzor 2nd Oct 17, 9:01 PM
    • 28 Posts
    • 5 Thanks
    boothzor
    This tells me you've used an ancient example - please bin it.

    Why not just search the forum for 'ParkingEye POPLA no keeper liability hirer POFA' and 'show POSTS' (never threads).
    Originally posted by Coupon-mad

    Dear POPLA,

    On the XXXXX, ParkingEye Ltd. issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “…either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted…”!

    As the registered keeper I wish to refute these charges on the following grounds:
    1) The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5)
    2) The operator failure to adhere to the British Parking Associations (BPA) Code of Practice Grace’ Periods
    3) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
    4) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver

    1) The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5)

    To support this claim further the following areas of dispute are raised:
    • The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
    • The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012

    The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

    Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on Friday 28th July 2017. The relevant period is therefore the 14 day period from Saturday 29th July 2017 to!Friday 11th August 2017!inclusive. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales. The “Letter Date” stated on the PCN is Tuesday 15th August and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on!Thursday 17th August 2017!(i.e. outside of the relevant period).

    The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

    POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a NTK much adhere to the following points:
    The notice must be given by—
    warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
    (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
    (ii) the creditor does not know both the name of the driver and a current address for service for the driver,
    the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
    Upon reviewing the NTK, ParkingEye Ltd have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f). The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

    2) Failure to adhere to the British Parking Associations (BPA) Code of Practice ‘Grace’ Periods

    The BPA Code of Practice clearly highlights within section 13 that a company’s approach to parking management must allow a vehicle “…a reasonable period without having their vehicle issues with a parking charge notice.” Subsections 13.2 and 13.4 offer further clarification stating that
    13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still
    allow them a grace period to read your signs and leave before you take enforcement action.
    13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end
    of the parking period should be a minimum of 10 minutes.
    Upon receiving the Parking Charge, the document described the vehicle as merely entering the car park at 19:27 and merely leaving at 20:37. The BPA sets a minimum of 10 minutes just to leave, not a maximum grace period. As Kelvin Reynolds of the BPA quoted in the news article ‘Good car parking practice includes ‘grace’ period’: “…there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.” To briefly summaries his definition, an observational period must include sufficient time for a motorist to park, observe the signs, make a decision as to whether they wish to comply with the conditions and pay.

    The total time from arrival to exit was 1 hour and 10minutes. Sufficient parking was purchased for 1 hours worth of parking (appendix a), from 19:30 to 20.30 of the day of the alleged event. That demonstrates a three-minute period from arrival to the driver purchasing a ticket and a seven-minute period for the driver to vacate the site from point of ticket expiry. It is clear from the evidence that ParkingEye Ltd. have failed to uphold and consider the necessary grace periods set out in the BPA Code of Practice, as the total time within the car park does not allow for the driver to make the necessary observations, as highlighted by Kelvin Reynolds above, nor allow the necessary grace period for leaving the car park.

    3) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

    It is suggested that ParkingEye Ltd. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that ParkingEye Ltd. be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

    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) Signage does not comply with the BPA Code of Practice and were not prominent, clear or legible from all parking spaces to form any contract with a driver

    The BPA Code of Practice clearly states that:!
    18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.
    Baring this paragraph in mind, there was categorically no contract established between the driver and ParkingEye Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. When the driver arrived at the car park it was in the hours of dusk and therefore impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located and the terms and conditions illegible.

    As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this 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

    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 and poorly placed – particularly to a driver entering the site – with no lighting. In fact, some signs are obscured and hidden in some areas with large areas of the car park without visible signs. The signs 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.!In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

    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 the majority 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 operator’s 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.”
    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 an example of a binding case law from the Court of Appeal offers further supports my argument:

    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.

    Based on these points, it is believed that ParkingEye Ltd. are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions and driver safety. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, request that ParkingEye Ltd. be required to provide strict proof of exactly where the car was parked (from photos taken in the same lighting conditions) and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date, time and lighting condition of the alleged event. I submit that full terms simply cannot be read safely from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. In addition to this, it is requested that any neighbouring signs to the entrance and vehicle parking location to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted or the driver misinformed.

    In summary, these points demonstrate the claim by ParkingEye Ltd is invalid and should the claim continue, further action and evidence requested in this appeal is required from ParkingEye Ltd.


    I think I may need to delete 2), dont think grace periods will apply as there was no ticket purchased in the first place.

    Anything else to add/delete ?
    • boothzor
    • By boothzor 3rd Oct 17, 10:12 PM
    • 28 Posts
    • 5 Thanks
    boothzor
    Any advice on that please? I've got to do this soon I think. I received the POPLA code almost a month ago now.

    Just need a little more guidance and hopefully I will get a successful appeal.
    • boothzor
    • By boothzor 3rd Oct 17, 10:15 PM
    • 28 Posts
    • 5 Thanks
    boothzor
    I believe I got the golden ticket NPC as it arrived after 14 days of the event, and I thought it would be almost 100% win, if that is the case.
    • Coupon-mad
    • By Coupon-mad 4th Oct 17, 12:55 AM
    • 50,577 Posts
    • 63,953 Thanks
    Coupon-mad
    I think I may need to delete 2), dont think grace periods will apply as there was no ticket purchased in the first place.
    Really confused...your POPLA appeal contradicts that:

    The total time from arrival to exit was 1 hour and 10minutes. Sufficient parking was purchased for 1 hours worth of parking (appendix a), from 19:30 to 20.30 of the day of the alleged event. That demonstrates a three-minute period from arrival to the driver purchasing a ticket and a seven-minute period for the driver to vacate the site from point of ticket expiry.
    You have 30+ days to use a POPLA code, so don't rush it and don't copy things randomly if they make no sense. I don't understand why you are telling us on the one hand that no ticket was purchased, but on the other, have prepared a draft appeal that says it was? You can't just copy one including sentences that are wrong!

    You have a golden ticket so can't lose as long as the driver was never admitted but this makes it hard for us to comment and help you if it seems you've copied another one without checking it? That's your job, not ours!
    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.

    • boothzor
    • By boothzor 4th Oct 17, 11:46 PM
    • 28 Posts
    • 5 Thanks
    boothzor
    Looking better? I don't know how to keep word formatting when copying from word onto here, it removes the bold/italic writing?

    Dear POPLA,

    On the XXXXX, ParkingEye Ltd. issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for “…either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted…”!

    As the registered keeper I wish to refute these charges on the following grounds:

    1) The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5)

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

    3) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver

    4) The charge is a penalty, breaches the CRA & is not saved by ParkingEye v Beavis



    1) The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5)

    To support this claim further the following areas of dispute are raised:
    • The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
    • The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012

    The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

    Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on Friday 28th July 2017. The relevant period is therefore the 14 day period from Saturday 29th July 2017 to!Friday 11th August 2017!inclusive. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales. The “Letter Date” stated on the PCN is Tuesday 15th July and in accordance with sub-paragraph 9 (6) is presumed to have been “given” on!Thursday 17th July 2017!(i.e. outside of the relevant period).

    The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)

    POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a NTK much adhere to the following points:
    The notice must be given by—
    warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
    (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
    (ii) the creditor does not know both the name of the driver and a current address for service for the driver,
    the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
    Upon reviewing the NTK, ParkingEye Ltd have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f). The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.


    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 the operator is to 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 it is suggested 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 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 the operator is put 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 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.


    4) The charge is a penalty, breaches the CRA & is not saved by ParkingEye v Beavis

    This situation is an 'ordinary' contract, a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a faulty set of machines and can be very easily distinguished from the case of ParkingEyeLtd v Beavis. Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

    At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held: ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

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

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

    This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

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

    The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position: - Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

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

    I therefore request that POPLA uphold my appeal and cancel this PCN.
    • boothzor
    • By boothzor 5th Oct 17, 12:12 AM
    • 28 Posts
    • 5 Thanks
    boothzor
    Thinking of removing this paragraph...

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

    Or at least where it mentions ticket being bought.
    • KeithP
    • By KeithP 5th Oct 17, 12:51 AM
    • 3,890 Posts
    • 2,126 Thanks
    KeithP
    I don't know how to keep word formatting when copying from word onto here, it removes the bold/italic writing?
    Originally posted by boothzor
    You might want to read this thread:

    .
    • Coupon-mad
    • By Coupon-mad 5th Oct 17, 9:22 AM
    • 50,577 Posts
    • 63,953 Thanks
    Coupon-mad
    Or at least where it mentions ticket being bought.
    Definitely don't have stuff about tickets being bought if not applicable - check every word makes sense.
    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.

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