MET Parking Services PCN - Urgent Advice Please

MrBear85

Coupon-mad wrote: »

If it was dark when the car was parked, add any pics you can get, of the signs as they look in the dark (even if they are pitch black!).

Like this (sorry, don't know why it's sideways) ...



Thanks for the tips, will share my draft appeal when it is ready :-)

Coupon-mad

Yes that's good, you could add a whole extra paragraph to the already-long 'unclear signs' template POPLA argument and illustrate it by embedding useful pics like that showing no lighting at the sparse signage at all.

MrBear85

Hello all and apologies for the radio silence (some personal matters have prevented me from giving this the attention it deserves)

I am about to post my draft POPLA appeal for review before I submit but I have a quick question: For this which will be my initial POPLA appeal (rather than any rebuttal), should I be embedding photographs I have taken at the car park into the PDF document as evidence or not? I ask this because the 'template' POPLA sections include statements like:

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.

Which make me think that I should hold my own photos back to use as counter-evidence rather than doing their job for them?

Thanks in advance.

Coupon-mad

No, you don't hold any evidence back or POPLA will not allow it. Everything gets embedded now. You could change that line to say that your own evidence of the unlit sign shown below shows how impossible the terms are to see or read in darkness.

MrBear85

Coupon-mad wrote: »

No, you don't hold any evidence back or POPLA will not allow it. Everything gets embedded now. You could change that line to say that your own evidence of the unlit sign shown below shows how impossible the terms are to see or read in darkness.

Thanks for the clarification and swift reply :-)

MrBear85

Hello All,

Below is my draft initial POPLA appeal. It is mostly copied from the links in the NEWBIES thread but I have checked carefully and added references to photos that I will embed in the PDF.

EDIT: Highlighted my additions/changes to 'standard' wording in red.

A couple of points of query;
1. I think I should remove section 4 "The ANPR system is neither reliable nor accurate". This was lifted from another users draft but I'm not sure it applies here as the (very) small print on their signs DOES state that they will use ANPR data to pursue PCNs. What do you think?
2. I'm not clear if section 5 "No Driver Liability" applies here also? No windscreen ticket was left on the vehicle and the keeper received an ANPR NTK in the post within 7 days of the alleged contravention. Again, what do you think please?

Many thanks.

Draft POPLA Appeal:

POPLA CODE xxxxxxxxxx

As the registered keeper of the vehicle, registration number xxxx xxxx, I wish to appeal against the parking charge issued by MET Parking Services.

My appeal is based on the following grounds.

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. BPA Code of Practice - further non-compliance - photo evidence.
4. The ANPR system is neither reliable nor accurate. – REMOVE?
5. No Driver Liability – NOT SURE?


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

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

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

http://imgur.com/a/AkMCN

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

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

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

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

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. A number of the signs around the site are not illuminated either through poor placement or faulty lighting (see image 1 below). The reported date & time of the alleged contravention is 07/02/17 at 19:23. Records show that, on this date, sunset was timed at 17:01. Therefore, by 19:23, visibility of the already poorly legible signs would have been drastically reduced when not properly illuminated. 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.

[Insert image of sign under broken light]
Image 1: Evidence of signage not illuminated, further reducing legibility

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 (see images 2 and 3 below). 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.

[Insert image of sign]
Image 2: Evidence that the sum of the parking charge is not made prominent on the signs used at this site. It is, in fact, obscured amongst other terms and displayed in the same inadequately sized font.

[Insert image of entrance sign]
Image 3: Evidence that the sum of the parking charge in not displayed at all on the sign positioned at the entrance to the site.

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 .36 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 less than 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 believe that the photographic evidence I have submitted here supports this view. 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 their contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

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

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

7.3 The written authorisation must also set out:

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

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

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

d who has the responsibility for putting up and maintaining signs

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



3. 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 (see image 4 below).

[Insert image of PCN]
Image 4: Copy of ‘Parking Charge Notice’ issued to the keeper. The included photographs do not clearly identify the vehicle entering or leaving this car park or provide any point of reference as to the vehicle’s location at all.


[Remove section 4?]
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 Code of Practice and the The Consumer Protection from Unfair Trading Regulations (2008) 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 Parking Services’ signs do not comply with these requirements because this 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. In fact, the language used (which is buried in small print) appears to be generic, rather than specific to this parking site, referring to “ANPR cameras and/or parking attendants”.
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 Protection of Freedoms Act (POFA) 2012 '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 Notice to Keeper (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.

MrBear85

Afternoon.

Been thinking on this overnight and I was wondering if you think that I should add a section about grace periods (possibly replacing section 4 or 5 pending your feedback)?

For context, this is a carpark that offers 4 hours free and the driver is alleged to have overstayed by 32 minutes. The driver reports that, on the night in question, they approached the exit barrier to leave but it did not raise. They waited there for some minutes thinking that perhaps there was an attendant watching via CCTV who needed to press a button to raise the barrier. When the barrier still hadn't raised after some time, the driver reversed and drove to the opposite end of the car park and left via the entrance lane where the barrier is always raised.

Do you think this is worth covering? Once you combine in the MINIMUM of 10 minutes grace period they should allow on arrival and departure with this delay it can be argued that this is the cause of the overstay. I will dig through some POPLA appeals for some wording now.

Thanks for your help.

Umkomaas

No harm in adding it, and the PPC will have to answer it to POPLA. You also need to research 'Frustration of Contract', which is a more powerful argument (and yet another issue for the PPC to deal with) than 'Grace Period' on its own.

MrBear85

Umkomaas wrote: »

No harm in adding it, and the PPC will have to answer it to POPLA. You also need to research 'Frustration of Contract', which is a more powerful argument (and yet another issue for the PPC to deal with) than 'Grace Period' on its own.

Thanks for that. I don't know if you can help but I'm rally struggling to find specific results to my searches. Whenever I put in something like "POPLA appeal grace period" for example, it returns any thread which has any of those words in which is A LOT. I've tried putting quotation marks around the phrases but it still seems to search them as individual words.

Any guidance on what I'm doing wrong?

DoaM

Try searching for Posts rather than Threads.