POPLA appeal - ASDA Stockport - failure to display blue badge

Grayth

Hi all,

You guys have helped me out massively before to the extent that I didn't even need to post other than to show off my victory email!

I'm now looking to help a colleague with her appeal. She was issued with a windscreen PCN by ParkingEye for not displaying her blue badge when parked in a disabled bay at ASDA in Stockport on 07/07/2017. The car park itself was free to park in at the time (apparently this is no longer the case), she has a copy of her receipt and holds a valid blue badge.

Unfortunately, we sent the initial appeal off a few days before day 26 (I think around Day 19/20 – my friend was off work for a week around day 26 and I wanted to make sure the appeal was sent correctly.) They responded “your recent appeal has been unsuccessful and that you have now reached the end of our internal appeals procedure. This is because you have not provided sufficient evidence to show that you did not break the terms and conditions on the signage. We are fully compliant with British Parking Association regulations on signage, and confirm that there is adequate signage at this site that is visible, appropriately located, clear and legible.”

So we’re now at POPLA stage. I’m struggling a bit regarding NTKs. We have received a rejection from PE (above) but no NTK – unless the bit tacked on the end of the rejection letter saying “We write further to your recent correspondence, which was received in relation to the Parking Charge incurred on «EventDate» at «EventTime», at «Location» car park…” qualifies as one? When should we expect a NTK, if at all? And is now agood time to start badgering ASDA etc. or has that ship sailed?

Also, upon trawling the various threads, I found mention of ASDA in Brighton having switched from Smart Parking to ParkingEye – is this exclusive to ASDA Brighton or is it ASDA-wide so that the material relating to this could also be used in my POPLA appeal? I realise this is a long-shot but I’ll take what I can get.

I will shortly post a draft POPLA appeal and would appreciate any helpful additions/subtractions, as well as any advice on photo evidence that might be worth gathering please.

Thanks,

Grayth

Draft POPLA appeal below. Does the signage point apply as it is, given it was a free car park at the time?

I can add the bit about NTK if that applies. The original PCN says a load of blurb about 14 days to pay discounted amount, have to pay within 28 days or they'll request registered keeper's details from DVLA, then stuff about payment methods and appeals to PE. Does any of this make the NTK bit of a POPLA appeal invalid?

Anyway, here is my very rough draft POPLA appeal. Any help much appreciated:-

[FONT=&quot]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[/FONT][FONT=&quot]

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:

[/FONT][FONT=&quot][FONT=&quot]***Link***[/FONT][/FONT]
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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:[/FONT]
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[FONT=&quot] [/FONT][FONT=&quot] ***Link***[/FONT][FONT=&quot]

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:

[/FONT][FONT=&quot][FONT=&quot]***Link***[/FONT][/FONT]
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As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

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''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:

***Link***

''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:

**Link**

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

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

In cases with a keeper appellant, yet no POFA 'keeper 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 I am 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 keeper without a valid NTK.

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

Understanding keeper liability
“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 myself as keeper 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 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.''

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

As this operator does not have proprietary interest in the land then I require that they produce an 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[/FONT]

Fruitcake

Parking Lie took over from Not so Smart a while ago countrywide in ASDA stores.

What happened when your friend complained to the ASDA CEO that genuine customers including an occupant with a disability was being scammed by their contractor?

A NTD is unusual where parking lie are concerned, but not unheard of. The idea of appealing a NTD around a day 26 is to make the scammers forget to send a NTK at all. Hopefully you will never get one which will be a winning point at PoPLA.

Use all the template appeal points available to you from post 3 of the NEWBIES. Ideally you want to submit your PoPLA appeal after day 56 if possible, but don't miss the PoPLA deadline.
What day are you at now, noting that the date of the alleged event is day zero?
Get photos of the entrance and all signage, especially if they are obscured, high up and difficult to see, in small font. Basically any failure to comply with the BPA CoP.

Did the initial appeal contain a copy of the BB to show that an occupant of the car was disabled in accordance with the EA 2010?

Grayth

Thanks for the quick reply Fruitcake.

My friend hasn't complained to the ASDA CEO yet. Is it not too late?

Not sure what an NTD is sorry? I thought it seemed unlikely for PE to forget to send an NTK given they're one of the more litigious scammers but my friend says nothing has arrived in the post and nothing on the original PCN seems to qualify as an NTK.

Fruitcake

Acronyms and abbreviations are explained in the NEWBIES.
The NEWBIES also tells people to complain to the landowner. ASDA will be the landowner but their staff appear to have been trained to tell people they don't own it. Don't believe them.

I added a few more questions to my post that will help us to help you.

Grayth

Thanks,

I looked on the acronyms section but NTD isn't included there.

The PCN was issued on 07/07/17, making today day 45. PE replied to my appeal on 02/08/17, if that has any significance.

The initial appeal to PE did not include a copy of the blue badge or mention EA 2010. We plan to make it clear to ASDA though.

Redx

D is Driver , as in Notice To Driver , as opposed to K for keeper , R for Registered as in Registered Keeper (RK) and O as in Owner

honestly, it really isnt difficult to work out the various roles that the Letters may refer to

Grayth

I thought it might be that, but a Notice to Driver isn't something I'm familiar with. I gather in this instance it's the PCN?

I'm being thorough as I'm dealing with someone else's ticket for them and I don't deal with such things on a daily basis. Awfully sorry Redx.

nosferatu1001

Yes, a windscreen PCN is by definition a NtD, as it is a Notice to the person Driving at the time.

Fruitcake

Grayth wrote: »

Thanks,

I looked on the acronyms section but NTD isn't included there.

The PCN was issued on 07/07/17, making today day 45. PE replied to my appeal on 02/08/17, if that has any significance.

The initial appeal to PE did not include a copy of the blue badge or mention EA 2010. We plan to make it clear to ASDA though.

If the PoPLA appeal deadline is after day 56, then wait until after that date and add that no NTK has been received therefore they have failed to meet the strict requirements of the POFA 2012 and therefore there can be no keeper liability = you win.
Just make absolutely sure that the drive's identity isn't revealed. Never say, I parked, or anything similar that gives the game away.

Grayth

Thanks again folks,

Does anything about my POPLA appeal jump out as being unsuitable in the circumstances?

I'll do as you say Fruitcake and wait 'til the NTK argument is valid. From what I've said about the PCN and the rejection from PE, neither qualifies as a NTK does it? That has to be a seperate posted document entitled "Notice to Keeper"?

I'm fully up to speed with all the "not dropping yourself in it" stuff from when I beat Excel parking a few years back, thanks It actually wasn't me in this case anyway.

In the meantime my friend is going to kick off (hopefully politely, though knowing her I'm not convinced!) in ASDA tomorrow. I've passed on a load of stuff from the successes thread to embolden her in her complaining!