POPLA Decisions

bergkamp

Appealed an invoice for a work colleague. Sent the BPA member first appeal template, from the newbies thread, to PE .


Rejected with POPLA code issued .


POPLA appeal as below;

POPLA Ref: 6062477250

As registered keeper of vehicle reg: XXX XXXX I am not liable for this charge.


Here is my POPLA appeal for consideration.

• Signage
• Landowner Authority
• ANPR accuracy and Compliance
  
  Signage

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+sign_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.








Landowner Authority


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








ANPR accuracy and Compliance


I require ParkingEye Ltd to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that ParkingEye Ltd must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require ParkingEye Ltd in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put this Operator to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.





Mr XXX XXXX



Dear XXX XXXX

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference 6062477250.

Parking Eye Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

ET6116/001





Two weeks from entering POPLA appeal to cancellation....

Umkomaas

Good win bergkamp, but a risky appeal. PE signage is usually ‘spot on’, in fact it was the clarity of their signage that provided much of the tipping point weight at the Beavis Supreme Court case. Unless their signage at the particular site of the parking event was missing or utterly woeful - both unlikely - then I think you might have dodged a bullet with that one!

The ANPR accuracy and compliance is now viewed here as a ‘dead in the water’ appeal point as POPLA have been accepting PPC general statements that their systems are fully serviced and accurate at face value. Another bullet dodged!

Leaving just your one other appeal point - Landowner Authority. There must have been something quite amiss with PE paperwork on this, otherwise they would surely have contested.

In summary, good win, albeit stepping over very thin ice in the process. A win’s a win! :T

Hope you don’t mind me saying this for the benefit of NEWBIES - this is not a recommended appeal for copying and pasting - unless you’re a ‘high roller’.

bergkamp

To save clogging the POPLA thread, replies on this thread;

https://forums.moneysavingexpert.com/discussion/5727057

DoaM

Umkomaas wrote: »

Good win bergkamp, but a risky appeal. PE signage is usually ‘spot on’, in fact it was the clarity of their signage that provided much of the tipping point weight at the Beavis Supreme Court case.

Unless it is signage in an Aldi car park, for example ... such signage is FAR from 'spot on'.

prjohnsonnn10

Chiltern Railway : APCOA are the new operator after MET have been kicked out and are now falling foul of any robust POPLA appeal citing railway byelaws apply and not relevant land. They are refusing to defend bascially.


Dear xxxxx

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference 0512637003.

APCOA Parking have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

ET6116/001

thegentleway

No thread associated with this one but I didn't receive a NTK. Thanks for the help and great advice on this forum.

Liberty Services 358 (Car parking partnership)
Decision: Successful
Assessor Name: Alexandra Wilcock

Assessor summary of operator case
The appellant failed to display a valid parking permit. The appellant displayed an invalid parking permit. The appellant remained on site for longer than permitted.

Assessor summary of your case
The appellant states the notice to keeper does not comply with the Protection of Freedoms Act 2012. She says the operator has not shown that the individual it is pursuing is the driver. The appellant advised that the signage on site is not clear, and does not state what the sum of the parking charge is. She states that the wording on the signage forbids parking. As such, there is no offer to park, meaning there is no contract. The appellant states the operator have failed to provide evidence to demonstrate it has the appropriate landowner authority, in accordance with the British Parking Association Code of Practice.

Assessor supporting rational for decision
After reviewing the evidence provided by both parties, I am not satisfied that the driver of the vehicle has been identified. It is clear from the operator’s case file that the Parking Charge Notice was “issued to vehicle” on the date in question. There is no evidence to suggest that the operator transferred liability from the driver of the vehicle to the registered keeper of the vehicle. As such, I must allow the appeal on the basis that the operator has failed to demonstrate who the driver of the vehicle was and therefore liable for the charge. I note the appellant has raised other issues as grounds for appeal, however, as I have decided to allow the appeal for this reason, I did not feel they required further consideration.

Umkomaas

Well done on winning. It’s a pity you weren’t able to flush POPLA out on the ‘Forbidding Signs - No Contract to Park’ issue. Where they can, they’ll avoid the potentially contentious points. Still, a win is a win.

Which PPC please?

thegentleway

Umkomaas wrote: »

Well done on winning. It’s a pity you weren’t able to flush POPLA out on the ‘Forbidding Signs - No Contract to Park’ issue. Where they can, they’ll avoid the potentially contentious points. Still, a win is a win.

Which PPC please?

Thank you! Wouldn't have won without all the great advice on here.
PPC = Liberty Services 358 (Car parking partnership)

dadsma

Sainsbury's Stanmore - Euro Car Parks - POPLA win

ECP issued parking charge for overstay.
ECP issued a ntk to the registered keeper (leasing company) not the hirer/keeper.
Hirer/keeper appealed, not naming driver.

https://forums.moneysavingexpert.com/discussion/comment/73274799#Comment_73274799

POPLA code 2412307025

POPLA Decision: Successful

Summary of appellant case: The appellants case is that the operator has not successfully transferred liability to the keeper, the signage is insufficient and they doubt the operator has the landowners authority to issue PCN's.

Assessor supporting rationale for decision:
PCN's are issued in respect of a driver's obligation to pay parking charges due under a contract, by parking the vehicle on relevant land. On this occasion, the operator has not provided sufficient evidence that the appellant was the driver of the vehicle at the time of the parking event.

The burden of proof lies with the operator in demonstrating a parking contract was formed and, if so, whether the motorist kept to the parking conditions. The operator must then prove that it is pursuing the correct individual for the charge.

I cannot accept the PCN is enforceable against the appellant. The appellant has raised other issues in their appeal, however it is not necessary to consider these in this case.

Computersaysno

Umkomaas wrote: »

Well done on winning. It’s a pity you weren’t able to flush POPLA out on the ‘Forbidding Signs - No Contract to Park’ issue.

The easiest way to do this is to make a 'single point appeal'.


I know someone who did this [with help from Parking Prankster] on the single point of appeal pertaining to "!ANPR is not reliable"...they won.


Yes a 'single point appeal' is slightly risky...but only if you think you might lose at POPLA and don't feel able to take on a PPC in court and win...


So it's not for everyone, but the more experienced of us on here [yourself included lol] should be up to the job!!!