Tower Road Newquay

pirateship

Hi. I'm looking for advice please. We received a letter from parkingeye and ignored it (based on what we did 6 yrs ago!) I read advice on here as we received a letter before county court. We decided to name the driver to get the process back to appeal stage. I appealed as driver, and now have a POPLA Ref.
I can no longer find the thread which gave advice on how to approach this given that we have NAMED THE DRIVER.
I have just spent most of my day off trawling through and can't see anything specific to appeal as named driver.
I parked for 4 hrs 11 mins and paid for 4 hrs. I would like to appeal based on lack of clear signage and grace period. Like everyone else, we did not know that the time ran from entry to the car park as this was not made clear.
Grateful for advice.

pirateship

Just to update the above, I have spent a few more hours looking through the Newbies Threads and found the advice to name the driver in order to reset the clock.

I would just like to know if the appeal would need to take a different stance or shall I just get on with a draft and see what people think I need to remove or amend.

Many thanks.

Redx

the appeal will focus on the legal arguments that remain valid , so not about keeper liability or about POFA2012 , because as driver you cannot rely on those aspects (only a keeper can)

so its about

no landowner authority
no contract
poor or inadequate signage
not the same as the BEAVIS case
Grace periods (clause #13 , both before and after the parking event)

plus anything else that is legally relevant

see post #3 of the NEWBIES sticky thread for examples and use them to draft your own appeal

nobody here will write it for you, so after producing a draft with no personal details or references in it (and no POFA2012 or keeper arguments), post it for critique

pirateship

Thanks Redx. I'm on to it.

pirateship

Hi,
I would really appreciate some feedback on my first draft POPLA Appeal.
Many thanks.

Re: ParkingEye PCN, reference code: xxxxxxxxxxxx

POPLA Ref: xxxxxxxxxxxxxx

Background from the appellant:

As a law abiding citizen who would never fail to pay for parking, I was deeply upset to receive a ‘parking charge notice’ on return from what was a pleasant day out in Fistral Beach, Newquay.

I have conducted research and found that this appears to be an all-too-common, misleading trap set by ParkingEye. I feel that the ‘parking charge’ does not reflect any loss that the landowner may have suffered due to an apparent overstay, unfairly calculated from the time of entry and not the time of purchase of the ticket. I consider my case strong enough to exercise my right to appeal this to POPLA.

Both the driver and registered keeper were present on the day of the alleged incident and we were both witness to the fault that was apparent with the ticket machine. We remember having to return to the car, first to check the Registration Number and twice thereafter to exchange our coins which were being rejected. Several other drivers had issues at this time and I offered them some of my coins to replace theirs, which all added to the time it took to purchase the ticket in the first instance.

The car was driven to Newquay for a day out and having never visited the town before we followed the local signs for parking. The driver drove into what was signed as a ‘pay and display’ car park. We have a young son and arrived in the car park at approximately 12:30. We paid a fee for up to 4 hours parking knowing we would have to return to the car before sunset at approximately 1600, as lighting back from the beach was insufficient. We returned to the car park at around 1635, after which we changed my son’s clothing which was damp from playing on the beach.

Whilst a ticket was purchased lawfully for the parking time, I'm afraid it was not kept as I did not foresee any reason to keep it. We returned to the car within 4 hours of paying for a four hour stay.

I am also assuming that ParkingEye will have a record of all purchases made on the day and since we had to enter our Number plate before even being allowed to purchase a ticket, a record would have been kept.

I feel the fine for the requested amount not only unwarranted but also completely unfair and unrecoverable.

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

1) No standing or authority to pursue charges nor form contracts with drivers.
2) No landowner authority
3) The signage in the car park was inadequate.
4) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis
5) Lack of Grace Period



1) 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, ParkingEye 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 ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye 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 ParkingEye.

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' 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) 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:

Link removed

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:

Link removed

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:

Link removed

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

Link removed

''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:

Link removed

''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:

Link removed

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

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

4) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis.
It appears that a partial registration number may have been recorded, either by inadvertent error of the disabled/elderly driver, or by failure of the operator's own keypad, or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. No evidence has been produced either way by this operator as to the cause of the issue and it is not disputed by any party that there was certainly no attempt to avoid payment, which was made in full.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

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

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

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

This is NOT a 'more complex' case by any stretch of the imagination.

At 32, it was held that a trader, in this case a parking company:
''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

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

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

- the signage failed to make any obligation and/or risk of penalty prominent, to enter the FULL VRN. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

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

5) Lack of Grace Period.
Section 13 of the British Parking Association code of practice, states:

13 Grace Periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to reach your signs and leave before you take enforcement action.
Section 16 of the British Parking Association code of practise, states
16 Disabled Motorists.
16.1 The equality act 2010 says that providers of services to the public must make ’reasonable adjustments’ to remove barriers which may discriminate against disabled people.
16.2 ‘reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machines.

In summary, I would like to emphasise that the occupants returned to the car in question within the purchased time period, but I’d like POPLA to note and consider the following:
The ticket machines at ‘Tower Road’ were faulty, and I would argue that trying to find suitably acceptable coins should be included in any Grace Period.

As the parent of a young child, who had unknowingly to us at the time become wet on the beach, a further period of time had to be used for changing for their health and well being.

Grace periods must be 'reasonable' and are not set in stone. Given the circumstances stated above, I’d suggest that ParkingEye should not be able to rely on ANPR timestamps alone for capturing the true length of time that a vehicle is parked in any of the properties it monitors. Further to this, there should be no legitimate interest in expecting a parent with young children to be able to ‘perform’ the task of leaving as quickly as an able-bodied person getting back into their car and driving out of a car park.

This concludes my POPLA appeal.

Yours faithfully,

Fruitcake

pirateship wrote: »

Hi,
I would really appreciate some feedback on my first draft POPLA Appeal.
Many thanks.

Re: ParkingEye PCN, reference code: xxxxxxxxxxxx

POPLA Ref: xxxxxxxxxxxxxx

[STRIKE]Background from the appellant:

As a law abiding citizen who would never fail to pay for parking, I was deeply upset to receive a ‘parking charge notice’ on return from what was a pleasant day out in Fistral Beach, Newquay.

I have conducted research and found that this appears to be an all-too-common, misleading trap set by ParkingEye. I feel that the ‘parking charge’ does not reflect any loss that the landowner may have suffered due to an apparent overstay, unfairly calculated from the time of entry and not the time of purchase of the ticket. I consider my case strong enough to exercise my right to appeal this to POPLA.

Both the driver and registered keeper were present on the day of the alleged incident and we were both witness to the fault that was apparent with the ticket machine. We remember having to return to the car, first to check the Registration Number and twice thereafter to exchange our coins which were being rejected. Several other drivers had issues at this time and I offered them some of my coins to replace theirs, which all added to the time it took to purchase the ticket in the first instance.

The car was driven to Newquay for a day out and having never visited the town before we followed the local signs for parking. The driver drove into what was signed as a ‘pay and display’ car park. We have a young son and arrived in the car park at approximately 12:30. We paid a fee for up to 4 hours parking knowing we would have to return to the car before sunset at approximately 1600, as lighting back from the beach was insufficient. We returned to the car park at around 1635, after which we changed my son’s clothing which was damp from playing on the beach.

Whilst a ticket was purchased lawfully for the parking time, I'm afraid it was not kept as I did not foresee any reason to keep it. We returned to the car within 4 hours of paying for a four hour stay.

I am also assuming that ParkingEye will have a record of all purchases made on the day and since we had to enter our Number plate before even being allowed to purchase a ticket, a record would have been kept.

I feel the fine for the requested amount not only unwarranted but also completely unfair and unrecoverable.
[/STRIKE]
I submit the points below to show that I am not liable for the parking charge:

1) No standing or authority to pursue charges nor form contracts with drivers.
2) No landowner authority
3) The signage in the car park was inadequate.
4) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis
5) Lack of Grace Period



1) 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, ParkingEye 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 ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye 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 ParkingEye.

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' 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) 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:

Link removed

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:

Link removed

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:

Link removed

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

Link removed

''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:

Link removed

''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:

Link removed

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

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

4) The charge is a penalty, breaches the CRA and is not saved by the decision in ParkingEye vs Beavis.
It appears that a partial registration number may have been recorded, either by inadvertent error of the disabled/elderly driver, or by failure of the operator's own keypad, or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. No evidence has been produced either way by this operator as to the cause of the issue and it is not disputed by any party that there was certainly no attempt to avoid payment, which was made in full.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

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

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

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

This is NOT a 'more complex' case by any stretch of the imagination.

At 32, it was held that a trader, in this case a parking company:
''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

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

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

- the signage failed to make any obligation and/or risk of penalty prominent, to enter the FULL VRN. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

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

5) Lack of Grace Period.
Section 13 of the British Parking Association code of practice, states:

13 Grace Periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to reach your signs and leave before you take enforcement action.
Section 16 of the British Parking Association code of practise, states
16 Disabled Motorists.
16.1 The equality act 2010 says that providers of services to the public must make ’reasonable adjustments’ to remove barriers which may discriminate against disabled people.
16.2 ‘reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machines.

In summary, I would like to emphasise that the occupants returned to the car in question within the purchased time period, but I’d like POPLA to note and consider the following:
The ticket machines at ‘Tower Road’ were faulty, and I would argue that trying to find suitably acceptable coins should be included in any Grace Period.

As the parent of a young child, who had unknowingly to us at the time become wet on the beach, a further period of time had to be used for changing for their health and well being.

Grace periods must be 'reasonable' and are not set in stone. Given the circumstances stated above, I’d suggest that ParkingEye should not be able to rely on ANPR timestamps alone for capturing the true length of time that a vehicle is parked in any of the properties it monitors. Further to this, there should be no legitimate interest in expecting a parent with young children to be able to ‘perform’ the task of leaving as quickly as an able-bodied person getting back into their car and driving out of a car park.

This concludes my POPLA appeal.

Yours faithfully,

I would ditch everything I have struck out as it is mostly irrelevant.

In the inadequate signage point, embed the relevant images rather than using links. That way the assessor has to look at them.

I haven't looked at your appeal in detail but as long as you have copied the relevant template appeal points from post 3 of the NEWBIES thread it should be OK.

Leave it a bit longer for the regulars to check over before you send it.

pirateship

Thank you for your help fruitcake. I will look for some photos of Tower Road signage.
Regards,

Coupon-mad

You've copied this verbatim:

It appears that a partial registration number may have been recorded, either by inadvertent error of the disabled/elderly driver,

Is it true? Is it relevant?

and you have copied this - true? Relevant?:

16 Disabled Motorists.
16.1 The equality act 2010 says that providers of services to the public must make ’reasonable adjustments’ to remove barriers which may discriminate against disabled people.
16.2 ‘reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machines.

11 minutes alleged 'overstay' is a complete scam PCN unsupported by the BPA Code and 'lack of grace period' should be point #1 and you will find a better example of that argument by searching the forum for 'POPLA grace period observation Kelvin Reynolds BPA'.

pirateship

OK I really appreciate that. This is stressful but the pain is worth it if they don't get a penny from me!

pirateship

Coupon Mad I'm sorry but I can't find anything under that search for Kelvin Reynolds and I have put the exact wording in. Do you have any other pointers please?

DollyDee_2

http://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

This might the one, wait for the experts to confirm

Dolly