PCN for breastfeeding - Appeal lost with Premier Parking

damargil

Not a word from the Landowner,

I will start to work on the POPLA appeal and I will post it for comments.

Cheers,

The_Deep

Time for the big gun, send a LBA, there are plenty of free examples on t'internet.

http://www.which.co.uk/consumer-rights/letter/letter-before-small-claims-court-claim

damargil

Hi all,

I have only until tomorrow to submit the POPLA appeal so I have based the following draft on a old post (link shown below)

https://forums.moneysavingexpert.com/discussion/5677641

I have added a bit of text to point 4 to do with the ANPR signage and adapted the rest to our case.

Please let me know if the structure and the content are ok, thanks...!!!



APPEAL POINT 1 – GRACE PERIOD

The 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 I entered into the ‘contract’ with Premier Park once I had found a parking space and taken the time to find a sign and read it.

As stated in the British Parking Association Code of Practice:
13 Grace periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You 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.

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.”

Taking this into account I would argue that we left the car park BEFORE the 2 hour time limit.


APPEAL POINT 2 – DISCRIMINATION

Upon returning to our car our 11 month old son became agitated, we quickly realised this was due to him needing a feed and as my wife is breastfeeding him we decided that it was best to feed him there in the car given the weather conditions and the fact that we had a 3 hour drive home. The Equality Act 2010 Section 17 states:

(3) A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth.

(4) The reference in subsection (3) to treating a woman unfavourably because she has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding.


APPEAL POINT 3 – NO EVIDENCE OF LANDOWNER AUTHORITY

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


APPEAL POINT 4 – SIGNAGE

There are no sings at the entrance of the car park. 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. I also believe that the signs tell drivers that ANPR technology is used but DO NOT state what the data captured by the ANPR cameras will be used for. Thus, failing to comply with the British Parking Association following statement:

21.1) You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.

There was neither a contract nor an 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.

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.

I believe the signs at this car park do 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.
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.

Since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, I believe 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.''

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:
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 Premier Park 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 Premier Park 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.

Fruitcake

You might want to adjust your wording, or find something more favourable from the EA.

APPEAL POINT 2 – DISCRIMINATION

Upon returning to our car our 11 month old son became agitated, we quickly realised this was due to him needing a feed and as my wife is breastfeeding him we decided that it was best to feed him there in the car given the weather conditions and the fact that we had a 3 hour drive home. The Equality Act 2010 Section 17 states:

(3) A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth.

(4) The reference in subsection (3) to treating a woman unfavourably because she has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding.



It could be interpreted that the 26 weeks period is not applicable to an eleven month old child.

For the signage point, you will need to embed your images into the document and save it as a pdf. That way it forces the assessor to actually look at them.

Redx

no need to give the age , just say VERY YOUNG SON

Coupon-mad

Or 'our baby son'.

You could also add:

We are aware that POPLA is able to request that a parking operator cancels a parking charge if POPLA considers that it has not given reasonable consideration to mitigating circumstances and the mitigating circumstances prevented the motorist from keeping to the parking conditions. Both are true in this case; this operator has not even replied about their Service Provider statutory duties under the Equality Act and it is believed Premier Park are not even aware of the law in this regard, or choose to disregard it. They just sent a template rejection letter, proving that they have failed to properly consider this appeal point.

damargil

I have modified point 2 of the appeal as follows.

By the way, do I need any specific introduction for the appeal or should I just start with the different points as such?

Thanks for your help...!!!

APPEAL POINT 2 – DISCRIMINATION

Upon returning to our car our 11 month old son became agitated, we quickly realised this was due to him needing a feed and as my wife is breastfeeding him we decided that it was best to feed him there in the car given the weather conditions and the fact that we had a 3 hour drive home.

Breastfeeding in public places is protected under the Equality Act 2010 for as long as you wish to breastfeed your baby, toddler or small child without an age restriction.

The Equality Act 2010, as stated below in Section 13, says that it is discrimination to treat a woman unfavourably because she is breastfeeding. It applies to anyone providing services, benefits, facilities and premises to the public, public bodies, further and higher education bodies and association.

Equality Act 2010; CHAPTER 15; PART 2; CHAPTER 2; PROHIBITED CONDUCT; Discrimination

13 Direct discrimination

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

(6) If the protected characteristic is sex— (a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding;


We are aware that POPLA is able to request that a parking operator cancels a parking charge if POPLA considers that it has not given reasonable consideration to mitigating circumstances and the mitigating circumstances prevented the motorist from keeping to the parking conditions.

KeithP

damargil wrote: »

APPEAL POINT 2 – DISCRIMINATION

Upon returning to our car our 11 month old son became agitated....

I thought you were going to change that to "Upon returning to our car our baby son became agitated..."?

damargil

KeithP wrote: »

I thought you were going to change that to "Upon returning to our car our baby son became agitated..."?

The age was a problem when I quoted section 17 but not with section 13. Do I still need to change it?

KeithP

damargil wrote: »

The age was a problem when I quoted section 17 but not with section 13. Do I still need to change it?

Why take the risk?