MET Parking Services PCN @ McDonalds Heathrow

oldskoolforever

Issued with Postal PCN. Incident date was 18/12/2016. Genuinely didn't see the signs that said 60 mins max parking (i live in rural south west so never occurred to me that there are limits on parking at restaurants). Issued with £50 fine for 114 minutes parking. I did use the restaurant during that time for about 1 hour, but think this is irrelevant.

Read the newbies guide here and established that MET are a BPA member. Obviously looking to get my POPLA code, so copied the blue text and posted it off. In hindsight, perhaps i should have sent the letter recorded delivery.

Today received a reminder (with the fee bumped upto £100), so assume my letter just disappeared mysteriously.

They do have a website to post an appeal (metreview dot com), but I was unsure whether to do it through there as you have to give your name at the start of the form & wasn't sure if this would be an admission in any way of being the driver?

So, now need help on how to proceed as obviously don't have a POPLA code at this stage. The PCN Reminder letter says the right to appeal through POPLA is no longer available as over 28 days. Should i resend the initial letter recorded delivery and insist they give me the POPLA code ? Or just send a 2nd letter insisting they send me a POPLA code ? Or am I completely wasting my time & should just pay up ? Any help would be great at this stage. thanks

Coupon-mad

Restate the same appeal NOW, TONIGHT, on 'metreview.com' - I have used it myself and it only asks for a name and address which of course they need - keeper (not driver). Do that immediately and add that this same appeal was posted by letter in December.

You should not have sent a letter - the NEWBIES thread tells you not to (last resort) and specifically you are never told here to use recorded delivery either.

oldskoolforever

Thanks, have resubmitted through metreview and will see what happens.

>>I have used it myself and it only asks for a name and address which of course they need - keeper (not driver).

That was the bit I was unclear on, it doesn't actually mention you are filling out the name of the keeper on the form so I was hesitant to fill out details in case of admissible evidence. That is why I also sent a letter instead of completing that form, appreciate the advice is not to send unless last resort though.

The_Deep

Also, write rude things on TripAdviser, Facebook, and twitter.

Two hours is rather a long time to spend in MacD, but perhaps you were suffering from indigestion.

oldskoolforever

As expected, received my initial rejection letter with POPLA code.

Just preparing POPLA appeal, which i will copy my draft in the next part of the thread.

Here is what they wrote in the rejection :

"Having carefully considered the evidence provided by you we have decided to reject your appeal for the following reasons :

The terms and conditions of use of the car park are clearly stated on signs prominently displayed around the car park, including that there is a 60 minute maximum stay for the use of McDonalds customers only. McDonalds have put time constraints in place for all motorists to maximize the number of spaces available for their customers and are confident that 60 minutes is sufficient time for motorists to park, order and consume their meal. Your vehicle was recorded as remaining in the car park for longer than the maximum permitted stay and therefore we believe the charge notice was issued correctly and we are upholding it.

We note your comments regarding the signage, however, all signs comply with the guidelines of the British Parking Association (BPA) and although we note your comments it still remains the drivers responsibility to be aware of all the terms and conditions of a car park by checking the signage of a car park.

This decision which has been based on the facts of the case and takes into account our consideration of any mitigating circumstances, is our final decision."

Coupon-mad

Standard blurb; not a single word there relates to you or your case.

oldskoolforever

Draft POPLA Appeal which i've gone for :

1. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
2. 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
3. BPA Code of Practice - further non-compliance - photo evidence.
4. The ANPR system is neither reliable nor accurate.
5. No Driver Liability

Note : not sure if this is worth mentioning to POPLA, but on the day of the PCN.. it was extremely foggy and visibility was probably 10-20 metres at most, which is probably why the sign wasn't seen in the first place.


DRAFT APPEAL

1. 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


2. 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:

(usual imgur link)

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:

(blogspot link)

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:

(testcases link)

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

(signazon link)

''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 link)

''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:

(bailii link)

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.


3. BPA Code of Practice - further non-compliance - photo evidence.

The BPA Code of Practice point 20.5a stipulates that:

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The parking charge notice in question does not clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).



4. The ANPR system is neither reliable nor accurate.

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

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

MET Car Parks’ signs do not comply with these requirements because these 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 the car park.

It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.

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

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

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

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

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

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

(legislation link)

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

(b) the commercial practice hides material information,

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

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

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

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


5. No Driver Liability

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

In cases with a keeper appellant, yet no POFA 'keeper 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 I am 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 keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

I have made my detailed submission to show how the applicable law (POFA), the BPA Code of Practice and case law (Beavis) undoubtedly supports my appeal, which I submit should now be determined in my favour.



I therefore request that POPLA uphold my appeal and cancel this PCN.

Coupon-mad

Change this heading from:

The ANPR system is neither reliable nor accurate

to:

BPA CoP and CPUTRs consumer law: failure to indicate the 'commercial intent' of the cameras.

Apart from that, all good to save as a PDF and upload under 'OTHER' on the POPLA website. You could add a sentence or two in the 'unclear signs' point, saying that the driver reported that it was extremely foggy and visibility was probably 10-20 metres at most, which explains why a poorly lit, non-prominent sign wasn't seen in the first place.

Redx

and I predict that MET will throw in the towel when they see that final draft

and mickey DEES should have a system in place to extend the time for tardy diners , beacusae it makes no sense AT ALL to punish customers of their premises , its hard enough to get people to stay and spend as it is

plus no time restrictions or charges at my local Morrissons , which is always busy

Guys_Dad

ANPR? Date printed NtK? Your OP is 21/1/17 but incident 18/12/16, hence my question.

oldskoolforever

Coupon-mad wrote: »

Change this heading from:


to:

BPA CoP and CPUTRs consumer law: failure to indicate the 'commercial intent' of the cameras.

Apart from that, all good to save as a PDF and upload under 'OTHER' on the POPLA website. You could add a sentence or two in the 'unclear signs' point, saying that the driver reported that it was extremely foggy and visibility was probably 10-20 metres at most, which explains why a poorly lit, non-prominent sign wasn't seen in the first place.

Ok thanks a lot, will do.

Fingers crossed, will update once i've submitted and heard back from POPLA.