Parking Eye - Tower Road

Marshall86

I see! Thanks

A lot of this goes way over my head to be honest. I have looked over a couple of different appeals and this is my starting point:



Dear Sir/Madam,

As the hirer of the above vehicle, I wish to appeal the parking charge notice ParkingEye Ltd issued against the mentioned vehicle. I believe the parking charge notice should be cancelled based on the following grounds:

1. ParkingEye Ltd has failed to meet the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”),

2. No evidence that the appellant is the individual liable – No Driver Liability,

3. BPA Code of Practice – non-compliance of photo evidence,

4. The signs in this car park are not prominent, clear or legible from all parking spaces, there is no clear delimitations of the car park area and there is insufficient notice of the sum of the parking charge itself,

5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

6. Insufficient grace period



 
1. ParkingEye Ltd has failed to meet the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”)

In order to be able to rely upon POFA to claim unpaid parking charges from a vehicle’s hirer, a private parking company must deliver a Notice to Hirer that fully meets the strict requirements of Schedule 4 of POFA.

ParkingEye Ltd’s Parking Charge Notice (“PCN”) issued to me on 03/05/2017 failed to comply with these strict requirements and ParkingEye Ltd has therefore forfeited any right to hold me liable for this PCN in their capacity as the vehicle’s hirer.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA, with Paragraph 14 setting out the conditions that the Creditor must meet in order to be able to hold the hirer liable for an unpaid parking charge.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; b) a copy of the hire agreement; and c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as registered keeper)).

ParkingEye Ltd did not provide me with copies of any of these documents.

Furthermore, ParkingEye Ltd has failed to comply with Paragraph 14 (5) of Schedule 4, specifically Paragraph 14 (5) (b) which requires that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. ParkingEye’s Notice to Hirer refers the hirer only to the Notice to Keeper itself, not to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that ParkingEye Ltd did not provide me with a copy of the Notice to Keeper as required under Paragraph 14 (2) (a). Consequently, ParkingEye Ltd failed to provide me with much of the information that was required to be included in the Notice to Keeper under Paragraph 9 (2).

I refer to previous POPLA Case Refs.6060986078 and 6061027318 (amongst others) in which POPLA determined that PCNs issued by ParkingEye Ltd to vehicle hirers are not compliant as a Notice to Hirer for the purpose of POFA.

For this reason alone, POPLA may reasonably determine that ParkingEye Ltd has no valid claim against me and that their appeal should therefore be allowed.

2. No evidence that the appellant is the individual liable – No Driver Liability

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

In cases with a hirer appellant, yet no POFA 'hirer 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 they are 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 hirer without a valid NTK.

As the hirer 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 hirer and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a hirer 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:

“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 me as hirer 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 Ltd 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.''



3. BPA Code of Practice – non-compliance of 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 contains two photographs of the vehicle. Neither of these images 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.

The images have also been cropped to only display the number plate. As these are not the original images, I require ParkingEye Ltd to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

4. The signs in this car park are not prominent, clear or legible from all parking spaces, there is no clear delimitations of the car park area 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 vs. 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:

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:

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 not visible from every parking space. 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, that these signs do not clearly mention the parking charge which is hidden in small print. 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. Furthermore, there is no clear sign of boundaries in the area for the driver to know when he/she is entering or exiting 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 seen so far, there is no clear delimitations of the car park area and the public road and the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. The operator is put 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:

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

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

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:

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, it is submitted 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 this argument, not the operator's case:

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, the operator is put 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, the operator is to show how the entrance and delimitations signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. It is submitted 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.

5. 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 the operator is to 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 it is suggested 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 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 the operator is put 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.

6. No period of grace given for the driver to read the additional signs within the car park.

The paid for parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which the parking ticket was purchased or at which it expired.

The BPA Code of Practice (13.2) states that parking operators "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 read your signs and leave before you take enforcement action." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park. In addition, the BPA Code of Practice (13.4) states that the parking operators “should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

The driver of the car at the time was captured by ANPR cameras driving in to the car park at 10.57 and driving out at 17.16 on the same date. They were unable to park immediately upon entering the car park due to congestion from other vehicles, and there was further delay purchasing a parking ticket due to having to queue to use the pay and display ticket machine.

It is very clear from the evidence that ParkingEye have failed to uphold the minimum grace periods as set out in the BPA Code of Practice, as the total time in the carpark exceeded the paid period by only 18 minutes, a sum of 9 minutes prior to purchasing a ticket, and 9 minutes after the parking period had ended.

Coupon-mad

Ah I have just looked and it does.. I would've put 'driver' here ..argh!

Because of this, you can't use point #1 and #2, which would otherwise have given you a slam-dunk 100% nailed-on POPLA win. You have to bin anything about the POFA because you admitted to being the driver. Eeek...

Marshall86

Number 1 and 2 have now gone.

Really wish I thought about checking on here first now!

Coupon-mad

OK, instead of those, you need to have the story of what happened in terms of paying for two sets of 3 hours at the machine, so the parking WAS paid-for in full, and then the usual argument about BPA Grace periods.

This has been done before re Tower Road rip-off PCNs. Try searching the forum for:

'Tower Road grace period Kelvin Reynolds pedestrians surf boards'

...or a mix of those words, as I recall writing some like that(!).

You need a first point that explains why the few mins to arrive and the few mins at the end, after parking, to weave your way past pedestrian and surf boards and then queue to leave on a busy and hot Summer day in a tourist beach location, are covered by the BPA Grace periods and are not unreasonable, given the nature of this busy car park and the site leading out on to a main road.

Marshall86

Dear Sir/Madam,

As the hirer of the above vehicle, I wish to appeal the parking charge notice ParkingEye Ltd issued against the mentioned vehicle. I believe the parking charge notice should be cancelled based on the following grounds:


1. BPA Code of Practice – non-compliance of photo evidence,

2. The signs in this car park are not prominent, clear or legible from all parking spaces, there is no clear delimitations of the car park area and there is insufficient notice of the sum of the parking charge itself,

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

4. Insufficient grace period





1. BPA Code of Practice – non-compliance of 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 contains two photographs of the vehicle. Neither of these images 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.

The images have also been cropped to only display the number plate. As these are not the original images, I require ParkingEye Ltd to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

2. The signs in this car park are not prominent, clear or legible from all parking spaces, there is no clear delimitations of the car park area 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 vs. 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:

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:

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 not visible from every parking space. 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, that these signs do not clearly mention the parking charge which is hidden in small print. 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. Furthermore, there is no clear sign of boundaries in the area for the driver to know when he/she is entering or exiting 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 seen so far, there is no clear delimitations of the car park area and the public road and the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. The operator is put 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:

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

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

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:

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, it is submitted 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 this argument, not the operator's case:

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, the operator is put 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, the operator is to show how the entrance and delimitations signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. It is submitted 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. 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 the operator is to 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 it is suggested 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 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 the operator is put 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. No period of grace given for the driver to read the additional signs within the car park.

The paid for parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which the parking ticket was purchased or at which it expired.

The BPA Code of Practice (13.2) states that parking operators "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 read your signs and leave before you take enforcement action." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park. In addition, the BPA Code of Practice (13.4) states that the parking operators “should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

The driver of the car at the time was captured by ANPR cameras driving in to the car park at 10.57 and driving out at 17.16 on the same date. They originally paid for 3 hours parking before returning to the vehicle and paying for an additional 3 hours of parking. They were unable to park immediately upon entering the car park due to congestion from other vehicles. This was during the school holidays on a very hot and sunny day. As a result of this, there were a lot of holidaymakers/surfers present, and so there was further delay to parking. There was a further delay when purchasing a parking ticket due to having to queue to use the pay and display ticket machine. When returning to the vehicle after 3 hours, another ticket was purchased, so again, 2-3 minutes of time was taken up in doing this. When leaving the car park, more time was taken upon exiting.

It is very clear from the evidence that ParkingEye have failed to uphold the minimum grace periods as set out in the BPA Code of Practice, as the total time in the carpark exceeded the paid period by only 18 minutes, a sum of 9 minutes prior to purchasing a ticket, and 9 minutes after the parking period had ended.

5. No keeper liability, as the issue date of the Parking Charge Notice, as a Notice to Keeper, does not comply with Schedule 4 of the Protection of Freedoms Act 2012

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11, and 12. ParkingEye has failed to fulfil the conditions which state that an operator must have provided the keeper with a Notice to Keeper (NTK) in accordance with paragraph 9, which stipulates as mandatory, a set timeline and wording:

(4) The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

As the parking event occurred on 31/5/2017, the NTK would only comply with POFA if received by me as the keeper on or before 14/6/2017. The NTK sent to me on 21.6.17.Therefore, it is obvious that this deadline was not met, and therefore ParkingEye has not complied with the applicable conditions of schedule 4 of the Protection of Freedoms Act. Strict compliance with POFA is required in order to establish keeper liability. Consequently there is no keeper liability.

The fact that ParkingEye issued an NTK claiming they have statutory rights, under POFA, to pursue the keeper, but then themselves not complying with the conditions required by POFA to be granted those rights, only leads me to believe that they issued the NTK in an attempt to fraudulently obtain money from me. This view is supported by the fact that ParkingEye has a template for their PCNs that excludes the usual POFA wording for cases where they have failed to comply with the POFA conditions, but chose not to use it for the PCN sent to me.

Marshall86

That's the updated version - I have only changed/added the last two points

Coupon-mad

What? You already know you can't use point #5.

When leaving the car park, more time was taken upon exiting.

That is too weak - read a few more that cover what holds you up when leaving that car park. You have explained arrival clearly, but not the delays on leaving - it leads to a busy main road, there is always a queue. This is already written in other Tower Rd POPLA appeals on here, don't miss it off.

It is very clear from the evidence that ParkingEye have failed to uphold the minimum grace periods as set out in the BPA Code of Practice, as the total time in the carpark exceeded the paid period by only 18 minutes, a sum of 9 minutes prior to purchasing a ticket, and 9 minutes after the parking period had ended.

Am I right that you don't yet know if it's ''9 mins and 9 mins'' though?

It might be 3 mins and then 15...or it might be 4 mins then 4 in the middle, then another ten at the end. Your first ticket might even have overlapped the second, so say that any such scenario might be the case, yet PE have failed to tell you. Say that you object to the unclear information in the PCN and you reserve the right to comment when PE finally show you the timings transparently.

Marshall86

OK I'll make those changes now.

As for number 5 - I thought that specific point was OK because they issued the ticket 21 days after the event rather than 14 days?

Coupon-mad

No, you have thrown all the POFA rules in the bin. It would have been a 100% win...for a KEEPER.

An admitted driver has no such argument, no rules re service of the NTK, no POFA deadline applies because you appealed as driver (it really is that important to do it right, next time you get a fake PCN!).

Marshall86

Hopefully this is good-to-go:



Dear Sir/Madam,

As the hirer of the above vehicle, I wish to appeal the parking charge notice ParkingEye Ltd issued against the mentioned vehicle. I believe the parking charge notice should be cancelled based on the following grounds:


1. BPA Code of Practice – non-compliance of photo evidence,

2. The signs in this car park are not prominent, clear or legible from all parking spaces, there is no clear delimitations of the car park area and there is insufficient notice of the sum of the parking charge itself,

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

4. Insufficient grace period





1. BPA Code of Practice – non-compliance of 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 contains two photographs of the vehicle. Neither of these images 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.

The images have also been cropped to only display the number plate. As these are not the original images, I require ParkingEye Ltd to produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

2. The signs in this car park are not prominent, clear or legible from all parking spaces, there is no clear delimitations of the car park area 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 vs. 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:

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:

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 not visible from every parking space. 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, that these signs do not clearly mention the parking charge which is hidden in small print. 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. Furthermore, there is no clear sign of boundaries in the area for the driver to know when he/she is entering or exiting 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 seen so far, there is no clear delimitations of the car park area and the public road and the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. The operator is put 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:

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

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

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:

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, it is submitted 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 this argument, not the operator's case:

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, the operator is put 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, the operator is to show how the entrance and delimitations signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. It is submitted 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. 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 the operator is to 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 it is suggested 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 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 the operator is put 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. No period of grace given for the driver to read the additional signs within the car park.

This matter appears to flow from an allegation of 'overstay' of a mere 18 minutes, despite the fact this is not an overstay at all and is unsupported by the BPA. The paid for parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which the parking ticket was purchased or at which it expired.

The BPA Code of Practice (13.2) states that parking operators "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 read your signs and leave before you take enforcement action." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park.

Kevin Reynolds, Head of Public Affairs and Policy at BPA states that:

‘There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”’

In addition, the BPA Code of Practice (13.4) states that the parking operators “should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

During a BPA Professional Development and Standards Board meeting in July 2015 it was formally agreed that relevant changes to the Code of Practice would be made to ensure compliance with the DfT guidelines regarding grace periods.

“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

The driver of the car at the time was captured by ANPR cameras driving in to the car park at 10.57 and driving out at 17.16 on the same date. They originally paid for 3 hours parking before returning to the vehicle and paying for an additional 3 hours of parking. They were unable to park immediately upon entering the car park due to congestion from other vehicles. This was during the school holidays on a very hot and sunny day. As a result of this, there were a lot of holidaymakers/surfers present, and so there was further delay to parking. There was a further delay when purchasing a parking ticket due to having to queue to use the pay and display ticket machine. When returning to the vehicle after 3 hours, another ticket was purchased, so again, 2-3 minutes of time was taken up in doing this. When leaving the car park, more time was taken upon exiting due to other users of the car park (in vehicles and people walking to and from their cars)

It is very clear from the evidence that ParkingEye have failed to uphold the minimum grace periods as set out in the BPA Code of Practice, as the total time in the carpark exceeded the paid period by only 18 minutes; however, It is not clear how long was spent prior to purchasing the first ticket, the gap between the the first ticket elapsing and purchasing the second ticket, or the amount after the second ticket elapsed - any such scenario might be the case, yet PE have failed to inform me. I object to the unclear information in the PCN and I reserve the right to comment when PE finally show me the timings transparently.

By any stretch of the imagination, these few minutes are well within what an ordinary independent person assessing the facts would consider reasonable. In fact this case demonstrates significant unreasonableness on the part of this notorious parking operator who appear to be attempting to get more and more 10/11 minute false 'overstay' allegations past POPLA this year, ignoring their Trade Body rules from the BPA.