Parking Eye PCN at Derby & Burton Services

AngelHarmony

Thank you so very much xx I genuinely wasn't very well last week & it seemed I couldn't see through the mist & I was just tying myself up in knots!! (I'm not normally such a stroppy moo!!) My head is most definitely a lot clearer today Thanks so much again xx

Coupon-mad

AngelHarmony wrote: »

Ok I put my POPLA code in & it's giving me 5 options as grounds for appeal so I'm hoping that means it's currently still open?

Do you think the essay above is sufficient/good enough? Very many thanks in advance xx

Yes that's still open, choose 'OTHER' only (as we always advise).

I think you should replace this #2 entirely (the whole section) because they know it was you driving, from your appeal:

2. 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

I would replace it with the fact there is no evidence at all that the car was parked somehow in the 'wrong place' and that Roadway Service Areas such as this one, must by law, offer 2 hours free parking. That time was not exceeded and no evidence of where the car stopped within this Services, has been shown. Put them to strict proof of where the car was actually parked, not just an aerial view of what signs might be where, actual proof of where the car was (they will fail).

I would also add another quick point that you are disabled (don't say 'registered disabled', I hate that misunderstanding! You are not 'registered' and nor do you want to be...) . State that you are entitled to reasonable adjustments under the Equality Act 2010 and have a legal right not to be harassed for taking a break due to your needs (no mention of the dog unless it is an assistance dog).

Screenshot a scan of your Blue Badge for POPLA and PIP letter if you wish, to really push the fact that you are disabled under the EA (even though POPLA don't want to hear it, PE might cancel in the end due to this as they won't want to sue you).

AngelHarmony

Thanks Coupon-mad I did wonder about the driver section as I knew I'd given myself away at the first appeal. I'd also wondered about mentioning being disabled. At the moment I'm still officially on an "Indefinite DLA" award (currently waiting for dreaded decision letter on being switched to PIP) so I'll scan that into my laptop too. I'll re-post my hopefully final draft shortly.

Thanks so very much again for your help xx

Coupon-mad

I think it's important to put PE to strict proof of where the car was parked, because they will fail on that point - they have no evidence.

AngelHarmony

Ok so I've switched #2 & added about being disabled. Hopefully this is now ok? Many thanks in advance xx

* * * * * * * * * * * * * * * * *

Dear POPLA Assessor,

Parking Eye Parking Charge Notice Number:
Vehicle Registration Number:

POPLA Reference number:

I am the registered keeper and I wish to appeal a recent parking charge from Parking Eye Ltd,. The charge is levied despite the driver not being identified.

1. Poor and inadequate signage
2. Roadway Service Area’s - Highway's Agency circular 01/2008
3. No evidence of landowner Authority
4. The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.
5. Amount demanded is a penalty.
6. Equality Act 2010


1. Parking Eye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park but their own images of the vehicle included on the PCN disprove this because no signage is visible in said images. 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 any 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 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.

2. Roadway Service Area’s - Highway's Agency circular 01/2008
Parking Eye have failed to provide any evidence at all that the car was parked in the wrong area of this large, open, Roadway Service Area’s car park. In accordance with the Highway’s Agency circular 01/2008, Roadway Service Area’s must by law provide at least: fuel, hot drinks and hot food, indoor seating, 2 (Two) hours free parking, free toilets and baby-changing facilities. As the car is recorded leaving the car park 34 minutes after entering then the time was not over stayed.
Although on this occasion the driver had no reason to purchase anything from the services, the driver was still a customer of the facility by being there. There is no requirement to purchase anything from a service area.


3. 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 un-redacted 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

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

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

Parking Eye Car Parks’ signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside the car park.
It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.
In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

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

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

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

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':

http://www.legislation.gov.uk/uksi/2008/1277/contents/made

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. The amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read and then consider the signage and decide whether to accept or not. In this case the signage was neither clear nor ample, and the motorist had no time to read the signage, let alone consider it, as the charge was applied instantly the vehicle stopped. The signage cannot be read safely from a moving vehicle.
6. As a disabled person then under the Equality’s Act 2010 I’m entitled to reasonable adjustments as well as a legal right not to be harassed for taking a break due to my personal needs. I include copies of both my current Disability Living Allowance entitlement letter & my Blue Badge.

Coupon-mad

OK, great as long as the word document you are saving to be a PDF to upload, actually shows the BBadge and DLA letter embedded as photos in the document itself, at the end (not uploaded separately, have it all in one document).

The only thing I would add would be a suggestion of the sign you saw at the entrance to the Services, which would have been like this:

http://3.bp.blogspot.com/-weMmuKKSi-c/UqLSr6-B7LI/AAAAAAAABgQ/4kUsXDxN1Fk/s1600/entrance.png

So I would embed that picture (not use the link, actually embed photos) into your word document here:

2. Roadway Service Area’s - Highway's Agency circular 01/2008 - 2 hours free parking is a legal requirement set by Parliament
Parking Eye have failed to provide any evidence at all that the car was parked in the wrong area of this large, open, Roadway Service Area’s (RSA) car park. In accordance with the Highway’s Agency circular 01/2008, RSA's must by law provide at least: fuel, hot drinks and hot food, indoor seating, 2 (Two) hours free parking, free toilets and baby-changing facilities.

As I recall, the entrance sign seen at this RSA looked like this BPA template:

<embed the image I linked above>

As the car is recorded leaving the car park 34 minutes after entering then the time was not over stayed. Although on this occasion the driver had no reason to purchase anything from the services, the driver was still a customer of the facility by being there. There is no requirement to purchase anything from a service area and I merely stayed to stretch my legs and rest from driving, and left well within the statutory two hours required to be offered in any RSA.

AngelHarmony

I've done all of the above including embedding the photo's in which turned out fine when I converted my Word document to a PDF. I've ticked the relevant boxes with POPLA & attached the PDF so now to keep everything crossed whilst I wait!!

Thanks so very much to you Coupon-mad & Red-X for all of your help :beer:

The_Deep

Even if PE were to contest this and win, it is not likely to be a big deal. IMO they would be insane to take you to court, where mitigation can and is considered by a judge.

You say that you have MS, you could turn up in court in a wheelchair with a carer and really milk it. A judge would have to have a heart of stone to find against you.

AngelHarmony

I've just received a reply from POPLA with a link to the evidence that PE have submitted. The 63 pages of evidence consists of all of our correspondence then several pages of photo's of the current signage, a layout map of the current signs & those which are planned to be put up shortly!!

It seems that the spaces near & by the hotel are only for hotel guests which I wasn't. I didn't know that as that part of the car park doesn't have a boundary like the food pub at the other end of the services. On looking at their signage layout map, where I entered the car park & parked there is a patron only sign up a pole that I'd have driven passed but none that I'd have seen without walking over to one (which I didn't as due to the heavy wind & rain I walked down the side of the hotel as it was sheltered) yet surprise surprise there's soon to be a lot of new signs including exactly where I parked & they appear that they're going to define the hotel boundary with signs where their ANPR camera's are!! (If PE do go ahead with this plan then I can a lot of people getting caught out!)

Talking of their ANPR camera's, in the evidence they've submitted, there are 2 entrance & 2 exit photo's of my car where as they only showed 1 in & 1 out in their original letter, is that correct?

Should I now submit further comments to POPLA? Is it worth trying to explain where I was parked?

Cheers :beer:

Redx

what you do now is look at their evidence and rebut anything they claim that doesnt seem right to you

so if the signage is poor on their evidence , say so

but dont rewrite your popla appeal

check signage , contracts etc

is the contract dated and signed ? how long does it run for ? or is there no contract at all ?

look for the discrepancies and point them out in your rebuttal , based on what PE have said in their evidence

this is the first time you have seen their evidence , so find all the errors , mistakes etc and point them out to the popla assessor