Parking Eye Penalty Notice Charge - Canvey Island Seafront

Coupon-mad

FeelingLighterAlready wrote: »

Hi Fruitcake,

There are no barriers in the images on the PCN that Parking Eye have sent me...there are two picturse, the first one showing the front of my car and the second showing the back...as far as I recall there were no barriers to get in or out of this car park?

Unless it has been removed in recent months, there is a barrier at the end of the approach road and they close it at night. You can probably tell where the car is, by the double yellows and bollard posts in the photo behind the car. It is shown in the approach road, I've seen these before.

You must have that in your POPLA appeal, as already said. Don't miss alleging it, you cannot add new points later.

That's why I showed you the old POPLA appeal I remembered, to show you what to write and not to just use the template, not in this case. You need an extra point about the photos failing to show the vehicle in the car park, only on an approach road, before the barriers, where the car may well have lingered while the driver debated whether to drive in due to the awful state of the car park surface and the ambiguous signs mounted on the barrier edges which (last time I saw them in a photo) were different from the sparse signs inside.

FeelingLighterAlready

Ok thank you. I did not see a bollard when I entered the car park.

The photos on the PCN dont even show the whole of my car only the front bit and the other photo shows the back with a little bit of the right side but not all of the top of the car. The rest of the photo doesnt show anything other than a path and what looks like slabbed pavement...so its hard to tell as these pictures are close up...

FeelingLighterAlready

Would this be ok to include as an additional post? I dont actually recall seeing any signs on the entrance to the car park, the entrance that I came in anyway....the other signs were at the back and high up so I couldnt really see what they said.

"the photos displayed on the PCN fail to show the vehicle in the car park, only on an approach road, before the barriers, where the car may well have lingered while the driver debated whether to drive in due to the awful state of the car park surface and the ambiguous signs mounted on the barrier edges which were different from the sparse signs inside"

Coupon-mad

Yes, add it with a heading and a point number. This is for PE to disprove.

The slabbed pavement sounds like the approach road, as the car park is stony/pot-holed (or was, when I assisted in a case about that location).

FeelingLighterAlready

ok great thank you so much! you are a star!

Is the rest (as my last copied letter post above) ok for me to send once I include that number and point?

Coupon-mad

I am not happy with point #1 or point #4. Neither is evidenced. Do you actually have a PCN that is not POFA compliant, that arrived later than day 15? If not, then don't allege it.

And why are you saying that two visits can't be discounted, when this isn't your argument, is it?

Were those points in that other Canvey case, I thought not...?

FeelingLighterAlready

Ok how about this draft, I have now removed points 1 and 4?

"1) No standing or authority to pursue charges nor form contracts with drivers.
2) The signage was not readable so there was no valid contract formed.
3) The ANPR system is unreliable and neither synchronised nor accurate - evidence does not discount two visits shown as one.


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.

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 signage was not readable so there was no valid contract formed between ParkingEye and the driver.

The only signs are up on poles, away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. I believe that ParkingEye place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the ParkingEye signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require ParkingEye to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

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

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

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

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

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

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

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

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

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

...and the same chart is reproduced here:

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

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

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

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

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

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

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

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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

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


3) The photos displayed on the PCN fail to show the vehicle in the car park, only on an approach road, before the barriers, where the car may well have lingered while the driver debated whether to drive in due to the awful state of the car park surface and the ambiguous signs mounted on the barrier edges which were different from the sparse signs inside.

This concludes my POPLA appeal"

Coupon-mad

3) The ANPR system is unreliable and neither synchronised nor accurate - evidence does not discount two visits shown as one.

Change the above to match what is below it. You need to give your new point #3 an appropriate heading.

You could also add a point #4 that if there were any P&D machines in this badly-maintained, pot-holed car park, then they were hidden because neither this driver saw them, not did another known driver the same day. State that you believe PE will be unable to evidence the amount of P&D machines in any aerial view but it is still believed there were none visible at all; the car park is waste ground, potholed and no terms are clear and no machines prominent.

And you could add a point #5 that there is no evidence that the driver was not a patron of the exempt retailer(s) mentioned on one remote sign among the sparsely-signed car park. If the driver/passengers were patrons of some on-site facility (e.g. MovieStarr, or whatever it's called?!) , it is believed that no payment was needed, so no contravention occurred and the PCN was not properly given. State that you put PE to strict proof that this car was not exempted at this location, on this day, at this time.

FeelingLighterAlready

Thanks again you wonderful person you!

I have just submitted my appeal to POPLA and will keep you all updated with the outcome.

FeelingLighterAlready

Hi all, so i have received Parking Eye's evidence via POPLA and it is over 40 pages long! I dont know where to begin to tell you what they are saying. However I fear I may have to pay this because they are showing signs for the car park (that I did not see where I parked!) and also a signed contract with Starr Snooker for car park management services???? It's dated 2012??

Help urgently needed please as I have 7 days to get something back to them :-( I don't have the money to pay this.