PCN Ticket IBIS Crewe Quandry

Coupon-mad

jwsolve wrote: »

Thanks, They both have the POFA 2012 section on the back which, if I understand it correctly, is not a golden ticket?

It's ParkingEye, no need to hide. It helps if we know the enemy!

jwsolve

Thanks so far for all of your help, so for the POPLA appeal, could I utilise this one as is?

I can't link to it as a new user, but it's post #3 from "UKPC Popla Appeal Help" thread.

Coupon-mad

No, because that's a year old and is about:

- a windscreen PCN
- from UKPC
- where no postal NTK has been served

Yours appears to be:

- a postal PCN
- from Parking Eye?
- by post
- see where I'm going?


Why are you looking at a 2016 completely different UKPC thread instead of using the template appeal points? Told you in post #4 where to look, and simply to put them together.

jwsolve

Coupon-mad wrote: »

No, because that's a year old and is about:

- a windscreen PCN
- from UKPC
- where no postal NTK has been served

Yours appears to be:

- a postal PCN
- from Parking Eye?
- by post
- see where I'm going?


Why are you looking at a 2016 completely different UKPC thread instead of using the template appeal points? Told you in post #4 where to look, and simply to put them together.

Ok, fair point - It's late - I'll put it all together and then would it be okay for me to post it here for checking? As the template, not with the reference numbers filled in etc of course)

Coupon-mad

Yes, we are always happy to review and suggest any extra POPLA points.

jwsolve

Hi, I'm just compiling it all together now and was just wondering at which point I would insert my images of the signs regarding company parking that I've taken and what specific wording should I use?

Also do I insert the images into the document or provide links to them? And the links that are in there already for the signage, do I leave them as links or insert them as images too?

This is what I've got so far:-

Dear POPLA Adjudicator,
I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from ParkingEye on the following points:-
1. Unclear signage, 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.
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
3. Permit car parks (residential 'own space' appeals, or industrial/employer car parks where the car was permitted).

1. 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:

website link here

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:

website link here

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:

website link here

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

website link 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:


website link 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:



website link here

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.
“This charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.

In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

There can be no legitimate interest in punishing authorised loading/unloading, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for permitted unloading/loading by a driver who has legitimate business and rights to do so.

These rights supersede any signs, which are of no consequence except to deter rogue unwanted drivers from leaving their vehicles when they have no business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to load/unload. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).

This question was tested recently in an Appeal case in June 2016 (transcript attached as evidence for POPLA*). Please note this is an Appeal case, decided by a Senior Circuit Judge and as such, its findings on the definition of 'parking as opposed to loading' and the findings on leaseholder/permitted visitor/loading/delivering rights of way superseding parking signs, are persuasive on the lower courts.

Beavis did not deal with any of these matters - nor was it relevant to a 'permit' car park - but the following case and transcript I have provided, is relevant and the Judge even states that Beavis DOES NOT APPLY to this type of car park:

Appeal case at Oxford County Court, 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016:

Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. After an initial appeal to the Independent Parking Committee was rejected, Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitors arguing that the charge was incompatible with the terms of the existing lease which also extended to certain rights for permitted visitors when loading/unloading. The Judge found that Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs.

I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 (transcript attached as evidence for POPLA**).

District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.”

Am I on the right track with this?

Many thanks in advance.

Coupon-mad

was just wondering at which point I would insert my images of the signs regarding company parking that I've taken and what specific wording should I use?

Also do I insert the images into the document or provide links to them? And the links that are in there already for the signage, do I leave them as links or insert them as images too?

Add your images into the section about 'unclear signs' and just be careful not the name the driver not imply who that person was...so you would be saying things like:

In addition to unclear signs on site, I draw POPLA's attention to the unclear bay lines and markings that caused the driver to believe that...blah blah...see image below which shows "reserved company parking spaces" which the driver relied upon. If these were not reserved company spaces then why were they marked thus? Clearly the driver reasonably replied upon the legend on the tarmac/sign...blah blah (or whatever - write it to support your images).

All the links that are images should be embedded into your word document as pictures, to illustrate the appeal and break up what would otherwise be a wall of words. IMHO, a long a pretty appeal with pictures (just ONE document) is best, no extra links or uploaded documents for POPLA to have to work to cross-reference.

jwsolve

Fantastic, thanks Coupon-mad. I'll get that together and sent off to them.

I'll let you know what the outcome

jwsolve

Hi, so we haven't heard back from POPLA as yet for this one, but we have heard back regarding the second one.

We have received the usual pdf response and have a POPLA number etc but we also recveived another pdf which says the following:-

Thank you for your correspondence received in relation to the above referenced Parking Charge.
It is ParkingEye’s position that this Parking Charge has been issued correctly pursuant to the Protection of Freedoms Act 2012 and that we had reasonable cause to request the Registered Keeper’s details from the DVLA following a breach of the terms and conditions of parking in operation on site. For your information, ParkingEye is authorised by the ICO to collect and process data for the purpose of car park management.
In respect of your request that we cease processing your data, we note that the right of an individual to request that processing of their personal data ceases only applies if continuing to process causes unwarranted and substantial damage or distress. In this regard, based upon the information you have provided, we do not consider that the continued processing of your personal data would cause unwarranted and substantial damage or distress.
Whilst the Data Protection Act does not define what is meant by unwarranted and substantial damage or distress, in most cases “substantial damage would be financial loss or physical harm; and substantial distress would be a level of upset, or emotional or mental pain, that goes beyond annoyance […]”. For further information about the above guidance from the ICO, please refer to https://ico.org.uk/for-organisations/guide-to-data-protection/principle-6-rights/damage-or-distress/
We also note that you have continued to contact us in respect of the outstanding Parking Charge, including to request the provision of a POPLA appeal code, and that this necessitates continued processing. We therefore wish to confirm that we have rejected your request.
Yours sincerely,
Legal Services
ParkingEye Ltd.

So regarding the second incident, which was two days later but under the same circumstances, what steps do we take next - especially with the above response. Do we post the same information to POPLA as we did for the first one? because the same conditions are true.

Thanks in advance.

jwsolve

Good news!

They do not wish to contend charge I mentioned in the first post. We won!

Thanks again everybody.