UKPC POPLA appeal

Freekachu

Hi all,

I was recently given four windscreen PCN in a visitors bay for parking longer than the maximum permitted during my stay at my cousins flat. Unfortunately, I have admitted that I was the driver in my first two appeals (will start a new thread for my 3rd and 4th tickets when it comes to the POPLA stage) and I did not read the ticket clearly, and thought the ticket was for not displaying a visitors permit clearly.

Not surprised that my appeal was rejected, I was given a POPLA code where I need to submit my POPLA by 17/11/16.

I have read the terms and conditions on their signage, and no where on the signage does it state that visitors can only park for a limited time.

I have drafted a POPLA appeal below. I only have two points as I wasn't sure what else I could include. Reason being is that they have stated in the rejection letter, vehicles are not permitted to park for over 8 hours in this car park. There are sufficient signs warning drivers that should they park their vehicles for longer than the permitted period that this will result in a Parking Charge being issued.

Since I have already admitted to being the driver in my appeal I was not able to use the points about notice to keeper and no standing authority.

Here is what I have drafted so far,

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxxx and am appealing a parking charge from UKPC.

I submit the points below to show that I am not liable for the parking charge:
1. Inadequate and unclear signage, forming no contract with drivers
2. No standing or authority to pursue charges nor form contracts with drivers


1. Inadequate and unclear signage

At the time of the alleged (denied) contravention it was very dark. The only notices are high up on posts, and very poorly lit. The only clear sign (as can be seen in the photos supplied by UKPC), is far away from where the car is parked. Upon inspection of the signage it states ‘A valid visitor permit must be clearly displayed at all times’. It is clear from the photos that a valid visitor permit is displayed.

It is not clear anywhere in the signage that the driver can only park in this particular bay for a limited period of time.

Unclear signage breaches Appendix A of the British Parking Association’s (BPA) Code of Practice (the BPA CoP) which states A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. 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. You must use signs to make it easy for them to find out what your terms and conditions are.

At no point in their signage does it say there will be a penalty for over staying in a visitors parking bay.

The BPA CoP also requires that signs must be visible and all terms prominent and legible, if an operator enforces terms. This was not the case, who could only read the ‘NO UNAUTHORISED PARKING’, only if a valid permit is displayed, which is displayed prominently in the drivers dashboard.

2. No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, UKPC must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put UKPC to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between UKPC and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to UKPC.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. Section 7.1 states:

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

Section 7.3 states: “The written authorisation must also set out:

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

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

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

d who has the responsibility for putting up and maintaining signs

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

I do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a landowner gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay UKPC (not that a keeper can be liable anyway on non relevant land and UKPC cannot enforce bylaws themselves, only the site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court). UKPC have no standing to enforce 'parking charges' or penalties of any description in any court.

I put UKPC to strict proof of compliance with all of the above requirements.


Any help would be greatly appreciated!!

pappa_golf

you have made 2 x appeals , how many popla codes have you got

Freekachu

Only one so far. The second appeal was submitted the day I got my ticket on 18th October, not heard back from them yet.
Since I have admitted I was the driver, I am guessing they would not send me a NTK?

Would you be able to allow me to post links so I can post links to some images which may help?

pappa_golf

you should recieve 2 x popla codes , make sure you get 2 ,

Freekachu

My first appeal was sent on the 23rd September and was rejected on 20th October.

Will probably receiving a response from them soon on my second appeal.

Coupon-mad

Take your VRN off the POPLA draft immediately - eeek, in case UKPC spot it.

Have you really only got two points to make? What about the persuasive case of Jopson, posted just the other day, about rights & easements taking precedence in residential car parks? The transcript is in that thread, you can find it by searching the forum (no link given, better for newbies to learn how good the search function can be). You can cite that Appeal court case and show POPLA the transcript and argue that the car was stopped as a genuine visitor authorised by the resident, whose lease takes precedence, as found in the recent Appeal case at Oxford...blah blah...

Normally the unclear signs point is MUCH longer, see the template appeal points in post #3 of the NEWBIES thread. Also if there is a maximum stay for visitors and you didn't know this then the signs can't be clear at all.

This sentence makes no sense to me, what do you mean? This is not talking about a maximum stay:

This was not the case, who could only read the ‘NO UNAUTHORISED PARKING’, only if a valid permit is displayed, which is displayed prominently in the drivers dashboard.

Can you show us the signs about this visitor bay maximum parking time? BREAK the link to your photos and we'll be able to see them (yes you will be able to post them that way).

Freekachu

Sorry, but not quite sure what you mean by BREAK the link.

Below are pictures of the signage taken by myself. As you can see in the second picture the signage is quite far up and is hard to read when entering the car park.

i64.tinypic.com/33ygjzp.jpg
i65.tinypic.com/inano9.jpg


Below are the pictures UKPC have taken with the signs the morning they put the ticket on my windscreen,

i66.tinypic.com/kb1zt0.jpg
i67.tinypic.com/2u6o6l5.jpg
i66.tinypic.com/14l62j9.jpg

I will post up my updated POPLA draft later once I've finished adding more to it.

Coupon-mad

Your pictures:

http://tinypic.com/view.php?pic=33ygjzp&s=9#.WCTFzfmLTIU

http://tinypic.com/view.php?pic=inano9&s=9#.WCTF4vmLTIU


UKPC's pictures:

http://tinypic.com/view.php?pic=kb1zt0&s=9#.WCTGQPmLTIU

http://tinypic.com/view.php?pic=2u6o6l5&s=9#.WCTGWPmLTIU

http://tinypic.com/view.php?pic=14l62j9&s=9#.WCTGbPmLTIU

I will post up my updated POPLA draft later once I've finished adding more to it.

OK, good.

Freekachu

I have read the case transcript about Jopson vs Homeguard Service, but am unable how to include this in my appeal.

This is what I have so far...

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxxx and am appealing a parking charge from UKPC.

I submit the points below to show that I am not liable for the parking charge:

1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3. No legitimate interest in enforcing a charge – (Parking Eye vs Beavis Case not relevant).

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

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

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

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

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

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

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

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

...and the same chart is reproduced here:

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

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

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

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole elsewhere in the site 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 magnifying glass to be able to read the terms.

Yet the car was not even shown by UKPC to be parked anywhere near any terms at all.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of authorised, permit displaying 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, right next to every visitors parking area stating the maximum parking period allowed for visitors.

Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

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

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

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

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

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

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

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

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' setting out details including exemptions - such as any 'genuine resident' or any 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do.

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 for visitor permit holders and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

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

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

7.3 The written authorisation must also set out:

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

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

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

d who has the responsibility for putting up and maintaining signs

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

3. No legitimate interest in enforcing a charge – (ParkingEye vs Beavis Case is not relevant to this appeal)

The Operator has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term. This case can easily be distinguished from the ParkingEye v Beavis case. With regards to the location and type of the car park and the interests of the operator, there is no comparison with the Beavis decision. The legitimate interest lies with the tenant of the flat to which this bay is allocated and as stated this vehicle was fully permitted by them to park there. As the parking bay is already paid for in a separate contract, no loss has been incurred by UKPC nor do any of the commercial justifications judged to be present in that case apply here.

The Operator may seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that ParkingEye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in paragraph 97 of the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;-
b. The desirability of that parking being free so as to attract customers;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants business, for example by commuters going to work or shoppers going to off-park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons. In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, the Operator has made no loss and the charge remains a penalty. The vehicle was fully entitled to be parked as it was – as stated in the tenancy agreement (enclosed) there is no requirement to display any permit and the parking bay is already paid for in the monthly rent, as agreed in the contract between the tenant and letting agent.

Further to this, this residential car park can only be accessed with permission from the tenants or landowner as there is an electronic entry system to unlock the gates. Therefore, the general public are unable to access this private resident’s car park in the same way as that of the Parking Eye vs Beavis case - so there is no legitimate commercial interest in enforcing a charge to ensure a turnover of customer vehicles. In further contrast to the Beavis case, these penalty charges cannot be expected to underwrite any free parking for customers – this is a purely residential car park so no free parking is offered to any customers, and secondly the resident already pays for their allocated parking spaces through their rental agreement.

The Operator has no legitimate interest in enforcing this charge; their only interest is to seek to profit and intimidate genuine residents into paying their speculative invoices – for parking in a bay they have already paid for and have every right to park in. Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation, it is impossible, without intellectual dishonesty, to believe that they would determine that this alleged offence would justify such a disproportionate, extravagant and unconscionable charge when the vehicle was parked in the flat’s own allocated bay where it has every entitlement to.

Careful analysis of the Supreme Court judgment is not, as the Operator may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest.

With regards to the findings of the ParkingEye vs Beavis case regarding signage and its application to this case, the sum of £100 is not communicated to drivers clearly and unambiguously. Therefore, it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver is unable to read the sum of the parking 'charge' (the £100 in this case) before parking - because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it. I refer you to the enclosed photographs of the signage on the site displaying the view of the signage from a driver’s seat.

The Beavis case depended upon clear, prominent and unambiguous signage and equally, a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule in that case only. It may be useful to refer to but it cannot be used to strike out the majority of private parking ticket appeals. The signs provided do not clearly state the amount that will be charged to motorists that do not comply with the terms and conditions of parking at the location. The signage in place at the location is not “conspicuous” or “legible” as required under the BPA Code of Practice. It therefore does not meet the standards outlined by the Supreme Court in that the “wording of the notices” is not sufficiently “clear” to bring the parking charge to the attention of the appellant and other motorists who use this car park.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed the following in writing, as the official POPLA policy regarding the requirement for proper application of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.

Yours sincerely
R Reeve
POPLA Administrative Team”

I put UKPC to strict proof of compliance with all of the above requirements.

This concludes my POPLA appeal.

Yours faithfully,

Coupon-mad

Freekachu wrote: »

I have read the case transcript about Jopson vs Homeguard Service, but am unable how to include this in my appeal.

Adapt the defence point I wrote as SRM, in post #18 here:

http://forums.pepipoo.com/index.php?showtopic=109329&st=0

That's a defence but you can use/adapt the suggested wording I wrote, to instead use it in any POPLA appeal. Also upload the JOPSON transcript as evidence for POPLA, along with your full PDF appeal document (once you have the OK from everyone here who is helping you).

Freekachu

Thanks coupon, your help is very much appreciated. I have tried adapting your points into my POPLA appeal but I am struggling to figure out what to delete and rephrase.

I have added point 4 to my appeal

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxxx and am appealing a parking charge from UKPC.

I submit the points below to show that I am not liable for the parking charge:

1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3. No legitimate interest in enforcing a charge – (Parking Eye vs Beavis Case not relevant).
4. No legitimate interest, the charge is incompatible with the rights under the lease - this distinguishes this case from the Beavis case.

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

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

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

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

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

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

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

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

...and the same chart is reproduced here:

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

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

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

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole elsewhere in the site 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 magnifying glass to be able to read the terms.

Yet the car was not even shown by UKPC to be parked anywhere near any terms at all.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of authorised, permit displaying 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, right next to every visitors parking area stating the maximum parking period allowed for visitors.

Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

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

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

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

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

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

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

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

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' setting out details including exemptions - such as any 'genuine resident' or any 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do.

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 for visitor permit holders and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

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

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

7.3 The written authorisation must also set out:

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

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

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

d who has the responsibility for putting up and maintaining signs

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

3. No legitimate interest in enforcing a charge – (ParkingEye vs Beavis Case is not relevant to this appeal)

The Operator has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term. This case can easily be distinguished from the ParkingEye v Beavis case. With regards to the location and type of the car park and the interests of the operator, there is no comparison with the Beavis decision. The legitimate interest lies with the tenant of the flat to which this bay is allocated and as stated this vehicle was fully permitted by them to park there. As the parking bay is already paid for in a separate contract, no loss has been incurred by UKPC nor do any of the commercial justifications judged to be present in that case apply here.

The Operator may seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that ParkingEye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in paragraph 97 of the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;-
b. The desirability of that parking being free so as to attract customers;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants business, for example by commuters going to work or shoppers going to off-park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons. In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, the Operator has made no loss and the charge remains a penalty. The vehicle was fully entitled to be parked as it was – as stated in the tenancy agreement (enclosed) there is no requirement to display any permit and the parking bay is already paid for in the monthly rent, as agreed in the contract between the tenant and letting agent.

Further to this, this residential car park can only be accessed with permission from the tenants or landowner as there is an electronic entry system to unlock the gates. Therefore, the general public are unable to access this private resident’s car park in the same way as that of the Parking Eye vs Beavis case - so there is no legitimate commercial interest in enforcing a charge to ensure a turnover of customer vehicles. In further contrast to the Beavis case, these penalty charges cannot be expected to underwrite any free parking for customers – this is a purely residential car park so no free parking is offered to any customers, and secondly the resident already pays for their allocated parking spaces through their rental agreement.

The Operator has no legitimate interest in enforcing this charge; their only interest is to seek to profit and intimidate genuine residents into paying their speculative invoices – for parking in a bay they have already paid for and have every right to park in. Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation, it is impossible, without intellectual dishonesty, to believe that they would determine that this alleged offence would justify such a disproportionate, extravagant and unconscionable charge when the vehicle was parked in the flat’s own allocated bay where it has every entitlement to.

Careful analysis of the Supreme Court judgment is not, as the Operator may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest.

With regards to the findings of the ParkingEye vs Beavis case regarding signage and its application to this case, the sum of £100 is not communicated to drivers clearly and unambiguously. Therefore, it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver is unable to read the sum of the parking 'charge' (the £100 in this case) before parking - because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it. I refer you to the enclosed photographs of the signage on the site displaying the view of the signage from a driver’s seat.

The Beavis case depended upon clear, prominent and unambiguous signage and equally, a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule in that case only. It may be useful to refer to but it cannot be used to strike out the majority of private parking ticket appeals. The signs provided do not clearly state the amount that will be charged to motorists that do not comply with the terms and conditions of parking at the location. The signage in place at the location is not “conspicuous” or “legible” as required under the BPA Code of Practice. It therefore does not meet the standards outlined by the Supreme Court in that the “wording of the notices” is not sufficiently “clear” to bring the parking charge to the attention of the appellant and other motorists who use this car park.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed the following in writing, as the official POPLA policy regarding the requirement for proper application of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.

Yours sincerely
R Reeve
POPLA Administrative Team”

4. No legitimate interest, the charge is incompatible with the rights under the lease - this distinguishes this case from the Beavis case.

In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

There can be no 'legitimate interest' in penalising residents for loading their possessions when leaving their home, under the excuse of a scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to fine residents for loading a car with possessions.

This question was tested recently in an Appeal case in June 2016 as recorded in the press and in the Solicitors Journal (8.7.16): solicitorsjournal.com/news/comm...week-60-seconds

Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. After an initial appeal to the Independent Parking Committee was rejected, Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson instructed a firm of solicitors in Aylesbury who successfully appealed the case, arguing that the charge was incompatible with the terms of the lease. The Judge found that Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs.

The Defendant also relies upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016, where District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

In this case, UKPC’s reason for issuing the parking charge was, “Vehicles are not permitted to park for over 8 hours in this car park. There are sufficient signs warning drivers that should they park their vehicles for longer than the permitted period that this will result in a Parking Charge being issued”.

UKPC relied principally upon a notice, where the notice read as follows:

“Parking Conditions Apply. No Unauthorised Parking. Terms of parking apply at all times.

This land is private property and parking control is managed by UK Parking Control Ltd.
Failure to comply with the following at any time will result in a £100 Parking Charge (reduced to £60 if paid within 14 days) being issued to the vehicle’s driver.

All vehicles must be parked only within marked bays. No roadway parking. No parking on verge. A valid visitor permit must be clearly displayed at all times. A valid parking permit must be clearly displayed at all times.”

There then followed references to driver’s details being obtained from the DVLA and unpaid parking charges passed to their debt recovery agency.

There is then information on how to pay, and then a telephone number information line.

It is apparent, the notice makes no reference about visitor permits being permitted to only parking for a maximum period of time.

I put UKPC to strict proof of compliance with all of the above requirements.

This concludes my POPLA appeal.

Yours faithfully,