Civil Enforcement Ltd leisure centre POPLA appeal

loulou_1984

I've read the newbies thread but unfortunately I didn't discover it until after I'd done my original appeal. I didn't say in my appeal I was actually driving, but I referred to myself and my baby going to the leisure centre so I may have blown it from this perspective!

I'd like to still submit a POPLA appeal but wondering where I stand considering the above.

Brief details of the case if relevant:

- out of town leisure centre car park (rebuilt opposite old leisure centre site where parking has never been monitored)
- 3 hour limit
- I didn't notice the signs (unsure whether I should've been more vigilant or whether signage was insufficient)
- had to wait for pool to open, then baby had to be breastfed so I went over the allowed time (which at the time, I didn't realise was limited)

Any help much appreciated!

Umkomaas

Have you received your POPLA verification code from CEL? If so, start drafting your appeal for us to view and critique. How to start your appeal is detailed in the NEWBIES FAQ sticky, post #3, which includes template appeal points for you to copy and paste and use as the backbone of your appeal.

Have you complained to the leisure centre - especially as a breastfeeding mother, where there is a need under the Equality Act 2010, for the service provider to provide additional adjustments? Use this as a lever on the leisure centre to get this cancelled. But do read the Act first so you have a full grip on things before you approach them.

Do a search on this forum in 'breastfeeding' and you will see how others have been advised on this.

loulou_1984

Thank you for the quick reply!

I do have a POPLA code - I've got until the 12th to appeal. I'll read the act now and I'll also see what others have done in regards to breastfeeding.

As I have a week left to appeal (I've just gone back to work and my husband has been ill so all my time has been spent with baby or on housework otherwise I would've done so sooner!) should I write to the leisure centre and in the meantime submit a POPLA appeal? The leisure centre already have a reputation for being run badly so I can't imagine they'd respond quickly!

loulou_1984

Ah...I fear I may not be successful with the equality act as it states 26 weeks from the birth of the baby and my baby is older than 6 months. It might be worth quoting anyway as they won't know the age of my baby.

Umkomaas

At this point in time, I think you should concentrate on drafting your POPLA appeal. Just to save you developing an Equality Act angle to the POPLA appeal, POPLA have never upheld an appeal based on an EA submission (breastfeeding or disability). They always avoid getting drawn in to it. They should do, as it's law!

If you miss getting your POPLA appeal in by its deadline (note there's a couple of days available beyond the actual deadline), then short of a leisure centre cancellation, you're looking at up to 6 years of grief from CEL, including the possibility of a court claim.

Just complain to the leisure centre on the basis of you breastfeeding your baby. There's no requirement to tell them anything about the age. I'd use the phrase 'young baby'. If you can get your complaint written in parallel with your POPLA appeal that would be good. Don't leave it too long. You only need a short sharp letter, not a lengthy rant, but to the point and making clear, authoritative references to the law of the land in the shape of the EA 2010. Remind them that they are jointly and severally liable for the actions of their agents (CEL) and damages start at £500.

loulou_1984

Thanks for the advice so far!

I've started drafting my POPLA appeal and have written a letter to the leisure centre. It occurred to me that I should check if 'Everyone Active' are the landowner - it turns out they're a management company and it's the council who own the land the leisure centre is on, and they've appointed Everyone Active to manage it.

Do you know if the rules different with tickets on council land? I've drafted a letter to the leisure centre which I could just send to the council but for some reason it feels a bit more daunting!

Edited to add: my friend who used to work at the leisure centre also said there are about 50 signs in the car park, so I don't think I can use the part of my POPLA appeal where it says there isn't sufficient signage! I'll visit tonight to check the size of the lettering.

loulou_1984

I feel way out of my depth on this and it's taken me hours to come up with the following - I've used parts of various templates I felt applied - hope it makes sense. I did mention the equality act/breastfeeding during the grace periods point but not sure if this is inappropriate? If anyone is able to have a look I'd be so grateful!

My deadline is 12th August, but I believe there are a couple of days grace on the deadlines...

POPLA Ref <ref>
Civil Enforcement Parking Charge Notice no <ref>

A notice to keeper was issued on <date> and received by me, the registered keeper of <reg> for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at <location>. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) Initial appeal refused as a matter of course without any substantive effort to reply
2) Misleading and unclear signage
3) Breach of the equality act
4) No landowner authority nor legal standing to form contracts or charge drivers

1) The initial appeal lodged with Civil Enforcement Ltd on <date> and the appeal response itself appears to be a pro-forma refusal. Were the Civil Enforcement appeal process anything other than a process by which to appear compliant with BPA guidelines then it would acknowledge points of information I provided.

2) The alleged breach, according to Civil Enforcement, is in contravention of terms and conditions “clearly displayed at the entrance to and throughout 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. At time of the alleged contravention, the one single small sign at the entrance could not be read fully and properly without stopping, and it is also possible to park in a bay without coming close to any other sign. Civil Enforcement are required to show evidence to the contrary.

The attached picture shows the sign at the entrance where it is not possible to stop if there is other traffic:

<image of entry sign>

The signs are placed every fourth row and spaced with seven car parking spaces between them. Due to the distance and the orientation of the sign it is therefore possible to park and walk to the leisure centre, particularly when parking in the middle two rows and not be able to see any clear signage which complies with BPA requirements. See attached image.

<image of parking spots with closest sign>

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. The wording is mostly illegible as it is so small in size, particularly notice of the actual parking charge itself.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print. On the entrance sign itself there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering, 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, with the text regarding the actual charge being far smaller. 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 and in the case of the charge itself, 0.25 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.

Separately, I can find no trace of a decided planning application relating to <parking location> for the Civil Enforcement Ltd signage and cameras. The only decided planning applications found relate to signage for the leisure centre. Assuming that indeed no planning application was submitted or approved, then the signs hold no validity even were they properly sized, properly legible and properly placed.

Specifically missing from the signs (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/at the site boundary. It is not stated that the cameras are not for security but are there in order to calculate 'total stay' for the purpose of generating profit from PCNs.

In fact, any reasonable driver would believe that they are authorised to park and rely on their own timekeeping. In circumstances where the terms of a notice are not negotiable (as with car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity in those terms, the rule of contra proferentem shall apply. 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'.

and 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.'

The driver could never guess that they are responsible for taking into account a period that is somehow back-timed to include a secret timing when the clock started (unbeknown to drivers) from their arrival in moving traffic from the road. If they are, then this must be transparently stated at the entrance and the machine clocks must be set to start a period of parking from arrival, by linking the systems.

Withholding material information from a consumer regarding the 'time when the clock starts ticking' and the commercial purpose of the ANPR 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.''

3) Grace periods
The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.

The CoP states:

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go...
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.

For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

Kelvin Reynolds of the BPA says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this:

<BPA Reynolds article link>

Good car parking practice includes ‘grace’ periods
“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.

The observation period (at the start)
The ANPR photos on the PCN show an arrival time of 10:45 and a departure time of 14:19 – an alleged overstay of 34 minutes.

The BPA (Kelvin Reynolds is the Director of Policy & Public Affairs) is on record as shown above, as saying that the 'observation period' at the start might take one person five minutes, but another person 10 minutes, depending on various factors”.

In this instance, there was a requirement for a mother to breastfeed her baby. According to the Equality Act 2010, a woman cannot be discriminated against for breastfeeding. The issue of the penalty charge notice based on a supposed overstay which would have partly been caused by breastfeeding, is therefore a breach of the Equality Act 2010.

Given that no evidence has been provided as to the trustworthiness of the timing system used to generate the timings supposedly relating to the photographs, 34 minutes is perfectly within scope of both the MINIMUM grace periods and any potential error in time recording.

Taking both BPA 'Observation' and 'Grace' Periods into account and unreliability of timings relating to the photographs supplied, I contend that the PCN was not properly given.

4) There is no landowner authority nor legal standing to form contracts or charge drivers. 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 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 Code of Practice 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


I therefore request that POPLA uphold my appeal and cancel this PCN.

loulou_1984

Just giving this a bump in case anyone has time to have a quick glance over my POPLA appeal! Deadline is today but as I understand it it's ok to go a couple of days over.

Thanks in advance!

Coupon-mad

I didn't say in my appeal I was actually driving, but I referred to myself and my baby going to the leisure centre so I may have blown it from this perspective!

In that case, I would add the usual appeal points that:

- the CEL NTK is a non-POFA one, and in any case the land is owned by the Local Authority (include proof/screenshot if you can) and as such, on non-relevant land and where a non-POFA NTK was issued, you cannot be held liable as registered keeper. State to POPLA that you were an occupant of the car and the keeper, but at no point has the driver been named and you decline to do so.

- the other appeal point to add would be the template about the 'appellant not being shown to be the individual liable'.

Once they are added, I think it will be ready to upload, under OTHER, on the POPLA website.

loulou_1984

Thank you very much!

I've added in the extra points (I found one template that seemed to cover both points) so I'll upload today. Really appreciate the help and you'll notice my appeal includes one of your templates already!

Fingers crossed

loulou_1984

I received a final reminder from CEL yesterday - as I've submitted my POPLA appeal so I just ignore it, or do I need to notify them that I've appealed? They've given me 14 days to pay.