ParkingEye ticket Canvey Island seafront

Hawkie

Hello people, I got a parking charge notice from ParkingEye at Canvey Island seafront car park back in June.
I had no idea it was a private car park. It was about 9.30pm at night & it was full of cars. I thought it was a council one like the one I'd parked in earlier where the restricted hours ended at 6.00pm. I had a quick look at the signage which I thought said that the hours in this one were the same. Apparently after 6.00pm, an 'overnight' charge comes into force but unfortunately I didn't see this.
I went for dinner at the restaurant next door & a few days later I got the charge notice through the post.
Unfortunately I paid cash for the meal & don't have the receipt so for this reason, ParkingEye rejected my appeal. I have written to 2 of the retailers asking them to cancel the charge notice, including the restaurant I ate in.
Unfortunately I only looked on here after I'd appealed to ParkingEye so I've already admitted to parking in the car park.
I've read the 'Newbies' post so as suggested, I'll post my draft POPLA appeal below, based on the last successful appeal on these forums for that particular car park, slightly amended for my own circumstances.
If anyone's got a minute & could cast an eye over it for me & see if it looks ok, I'd really appreciate it. Cheers.

Hawkie

Re: ParkingEye PCN, reference code ***********
POPLA Code: ************

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye on [ ] at [ ], at Seafront, Canvey Island Car Park. I submit the points below to show that I am not liable for the parking charge:


1) No standing or authority to pursue charges nor form contracts with drivers.
2) Much of the signage was not readable so there was no valid contract formed.
3) The signage that was readable wasn't clear in pointing out this was a private car park & that charges applied at all times.
4) I was a patron of Jimmy Mac's diner next door to the car park

1) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkingEye.

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

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

3) I was not aware that this was a private car park & I still haven't been made aware of who actually owns it. I did check one sign which seemed to say that the hours of operation ended at 6.00pm, the same as the nearby council car park I'd parked in earlier. Taking that to be the case, as it was after 9.30pm I didn't think I needed to purchase a ticket.

4) ParkingEye's rejection of my initial appeal appears to hinge on the fact that I didn't have any receipts from nearby businesses. Me & I partner did have dinner at Jimmy Mac's diner adjacent to the car park, that was our soul reason for parking there at that time of night. As I often do, I paid cash for the meal & didn't keep the receipt. I have told this to ParkingEye & asked them to check whether the diner has CCTV which would show us eating there, or if not, to contact the staff to ask them if they remembered us but as far as I'm aware, they haven't done so.
I don't think it's fair that I should receive a hefty parking charge simply because I paid by cash & not by card, so was unable to provide documentary evidence of having eaten there

This concludes my POPLA appeal.

Umkomaas

That appeal is weak. Don't send that.

Do a forum search on Canvey Island as there was a recent case for the same car park that, from memory, went to POPLA and won. See how you get on with that search.

In terms of your appeal if the search draws a blank, use the NEWBIES FAQ sticky, post #3 where there are ready written POPLA appeal template appeal points to use which will strengthen your appeal substantially.

Hawkie

Thanks Umkomaas, I did use the last successful appeal at this car park as a template but had to remove a couple of points as they weren't usable in my case as I've already admitted I parked there. In the Newbies stickied thread I thought it suggested finding the latest POPLA appeal as a template as the grounds for appeal were changing all the time. I'll take another look to see if I misread it. Cheers

Hawkie

Christ, this is all a bit dense if you're not used to it !
OK, finally finished (I hope). A mixture of templates from the last successful appeal at this car park & my own points. The last appeal won based on something in ParkingEye's evidence pack which obviously I haven't got yet & I'd rather not mention it on here as I'm sure they scan these pages !
I had to remove all the links as it wouldn't let me post them because I'm a new user !
Anyway, here goes;

Re: ParkingEye PCN, reference code ***********
POPLA Code: ************

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye on [ ] at [ ], at Seafront, Canvey Island Car Park. I submit the points below to show that I am not liable for the parking charge:


1) No standing or authority to pursue charges nor form contracts with drivers.
2) Much of the signage was not compliant/readable so there was no valid contract formed.
3) The signage that was readable wasn't clear in pointing out this was a private car park & that charges applied at all times.
4) There is no full address of the car park on the Notice to Keeper where the contravention is alleged to have occurred. There is more than one car park on Canvey Island seafront.
5) If the contravention was from the second car park, I was a patron of Jimmy Mac's diner next door to the car park.
6) The ANPR photos provided are of a very poor quality.

1) No standing or authority to pursue charges nor form contracts with drivers .
I believe that ParkingEye has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkingEye.

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

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

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

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:

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

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

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

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

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

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

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

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

''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:

''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:

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

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

3) I was not aware that this was a private car park & I still haven't been made aware of who actually owns it. I did check one sign which seemed to say that the hours of operation ended at 6.00pm, the same as the nearby car park I'd parked in earlier. Taking that to be the case, as it was after 9.30pm, I didn't think I needed to purchase a ticket.

4) The address of the car park where the contravention is alleged to have taken place is ‘Seafront, Canvey Island’. I parked in two car parks at Canvey Island seafront that day. The first one I purchased a ticket from the pay & display machine which covered the time I stayed for. In the second car park, it appeared that no ticket was necessary as I was there after the apparent hours of operation visible on one of the signs.

5) ParkingEye's rejection of my initial appeal appears to hinge on the fact that I didn't have any receipts from nearby businesses. Me & I partner did have dinner at Jimmy Mac's diner adjacent to the car park, that was our sole reason for parking there at that time of night. As I often do, I paid cash for the meal & didn't keep the receipt. I have told this to ParkingEye & asked them to check whether the diner has CCTV which would show us eating there, or if not, to contact the staff to ask them if they remembered us but as far as I'm aware, they haven't done so. There were no signs that I saw inside Jimmy Mac’s diner saying that I needed to obtain a permit from them in order to park in the car park next door.
I don't think it's fair that I should receive a hefty parking charge simply because I paid by cash & not by card, so was unable to provide documentary evidence of having eaten there. I most definitely did eat there, so if ParkingEye are saying I didn’t, I demand they provide evidence of this.

6) The ANPR photos provided are of very poor quality. They show how dark the second car park was at night & how difficult it would be to see any signs. All that’s visible in both photos are my number plate & either the front or back lights. No surroundings are visible & there is no way of telling whether my car is inside the car park boundary, or indeed, at Canvey Island at all.

Umkomaas

Leave out appeal point #5. POPLA don't adjudicate on that (mitigation) and it won't help you.

In terms of the points you make on the signage:

1. Have you copied and pasted that section from an actual Canvey Island/PE successful POPLA appeal?

2. Do you have photos of the signs in the Jimmy Mac's car park to back up your statements? If not, are you able to get some? If possible, take them at roughly the same time as when your parking event took place, and, especially if it was dark, do not use flash. Try to show the signs at the same time you were expected to read them.

Hawkie

Hi Unkomaas, thanks again for your help.
Yes I did copy & paste that section from a successful appeal at the same car park, although I think they used a template. I inserted one sentence about how dark it was.

Point taken about section 5. I would like to mention that I was a patron at the adjacent business though as I know the car park is there for use by patrons of some of the local businesses, some of whom have machines inside that issue a permit to park there (I've since found out).

I'd love to go back & take some photos of the car park at night. Unfortunately it's about 3 hours drive there & back.
Thanks again

Umkomaas

I'd love to go back & take some photos of the car park at night. Unfortunately it's about 3 hours drive there & back.

Hmmm! I see the problem. Sometimes we have posters on here who live locally to some car parks, up and down the country, so let's try this as an outside chance of getting some. So if it was 9.30pm in June, that would have been somewhere close to sunset. So that would be around 8.45pm now.

Help please: are there any posters in the Canvey Island area who could help the OP by taking some photos of the ParkingEye signs at the Jimmy Mac's restaurant. If they could be taken around 8.45pm that would be ideal, but not essential.

See if we get a response. When is your POPLA deadline date?

Hawkie

That was a good question, I was wondering that myself ! 28 days from August 4th.
You really have been very helpful, thank you.

Umkomaas

Hawkie wrote: »

That was a good question, I was wondering that myself ! 28 days from August 4th.
You really have been very helpful, thank you.

OK, you've got a bit of time to play with, and the 28 days seem not to be rigidly applied. We work on there being a couple of days slack provided, so 30/31 days. But that's for really emergencies, work on getting it in by day 28 and then there's no inadvertent slip-up.

Hawkie

Will do, thanks mate