Forbidding sign, grace periods, or both?

happybagger

OK so here goes with what I think for my POPLA appeal.
I have not used the 'Not the driver' point as it was as far as I can tell a POFA compliant PCN received in time, and not gone down the ANPR reliability route as folk say POPLA never go with that.

If it's a bit long-winded, I will agree, but CM says go to town on the signage point.

Be grateful if anyone could cast their eyes over it and make comment, cheers

happybagger

My appeal as the registered keeper is as follows:

1: Insufficient observation or grace periods
2: Inadequate / forbidding signage.
3: No evidence of Landowner Authority


1. Insufficient observation or grace periods


No period of observation or grace was provided for the driver to read the additional signs within the car park


ANPR photographs taken and provided by ParkingEye only show the time of entry into and exit from the car park at the boundary of the public highway but do not show the vehicle parked. With a total time of l2 minutes within the car park it is clear that the operator has not allowed for suitable observation and grace periods as per the BPA code of practice.

The BPA Code of Practice (13.2) states that parking operators "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."


Paragraph 13.4 of the Code states [FONT=Times New Roman, serif]“[/FONT][FONT=Times New Roman, serif]You should allow the driver a reasonable period to leave the private car park ...the Grace Period at the end of the parking period should be a minimum of 10 minutes.”[/FONT]


[FONT=Times New Roman, serif]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 for the time taken to arrive, find a parking bay, lock the car, go over to any sign, to read the sign in full, to decide whether to accept the terms and conditions displayed.[/FONT]


[FONT=Times New Roman, serif]Paragraph 18.5 of the code states[/FONT][FONT=Times New Roman, serif] “...they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”[/FONT]


[FONT=Times New Roman, serif]Kelvin Reynolds, Head of Public Affairs and Policy at BPA has stated:[/FONT]


“[FONT=Times New Roman, serif]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.[/FONT]
[FONT=Times New Roman, serif]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.”[/FONT]


[FONT=Times New Roman, serif]2. Inadequate signage / forbidding signage[/FONT]


[FONT=Times New Roman, serif]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 onl.

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.

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.[/FONT]


[PIC]



[FONT=Times New Roman, serif]Here, in an English version of the sign, the signs are placed at a height of 118 inches above ground and eight lines of small pring in a block which is completely unreadable and even barely recognisable as type from a car seat. This small print is located 103 inches above ground.[/FONT]


[PIC]

[FONT=Times New Roman, serif]The above picture is taken from a position 6 feet from the kerb; a driver is unlikely to be nearer to the sign than this when attempting to read the sign from the driver's seat.[/FONT]
[FONT=Times New Roman, serif]They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. 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.[/FONT]


[FONT=Times New Roman, serif]The example of the Welsh version is worse, with the block of miniature print being 9 lines.
The following is a close-up of the Welsh version, demonstrating the difficulty in reading the small print:[/FONT]

[PIC]

[FONT=Times New Roman, serif]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:

''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 with heights of 3 millimetres (capitals) and 2mm (lower case), approximately.[/FONT]


[FONT=Times New Roman, serif]Two photographs below showing a tape measure show the inadequacy of the lettering.[/FONT]


[FONT=Times New Roman, serif]English:[/FONT]

[PIC]

[FONT=Times New Roman, serif]Welsh:[/FONT]


[PIC]

[FONT=Times New Roman, serif]I put the operator to strict proof as to the size of the lettering on their signs.

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 2 to 3 mm, showing the terms and the conditions and placed high on a wall or pole, 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.
[/FONT]

[FONT=Times New Roman, serif]Paragraph 18.10 of the BPA Code states: [/FONT][FONT=Times New Roman, serif]“So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle.” This is not the case at this site.[/FONT]
[FONT=Times New Roman, serif]
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 [/FONT][FONT=Times New Roman, serif]'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106'[/FONT][FONT=Times New Roman, serif] 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. [/FONT]


[FONT=Times New Roman, serif]Furthermore, 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. Not all parking spaces at the site have a sign within view. Indeed, on the northern side of the car park there is no terms and conditions sign in either languge for about 100 yards.
[/FONT]

[FONT=Times New Roman, serif]The signs on this car park as shown above state '1½ Hours Max Stay' then in smaller lettering “Strictly no parking outside of store opening hours” then in smaller lettering still “Parking limited to 1½ hours”[/FONT]


[FONT=Times New Roman, serif]By definition, the sign does not offer any contract to park after 'Store opening hours' and therefore forbids parking at these times.[/FONT]


[FONT=Times New Roman, serif]The signs on entry to the car park do not specify any restriction as to when parking is forbidden.[/FONT]
[FONT=Times New Roman, serif]
[/FONT]
[FONT=Times New Roman, serif]The below photo shows the entry sign (Welsh version):[/FONT]
[FONT=Times New Roman, serif]
[/FONT]
[FONT=Times New Roman, serif][PIC][/FONT]
[FONT=Times New Roman, serif]
[/FONT]

[FONT=Times New Roman, serif] [/FONT]


[FONT=Times New Roman, serif]There is no indication of “store opening hours” and it is therefore impossible to determine what the opening hours are, until reaching the entrance doors to see if the store is open. Nowhere on site do either the store nor ParkingEye state opening hours.[/FONT]


[FONT=Times New Roman, serif]It is noted that the store has different opening hours on Saturday and Sundays to the rest of the week, and shorter opening hours to the nearest Home Bargains store, allowing for further confusion. [/FONT]
[FONT=Times New Roman, serif]The car park entrance is more than 180 yards from the store doors. [/FONT]


[FONT=Times New Roman, serif]The three photographs below show there is no information regarding this even on any of this in the entrance area:[/FONT]




[FONT=Times New Roman, serif]Entrance / Exit doors (SE):[/FONT]
[FONT=Times New Roman, serif]
[/FONT]
[FONT=Times New Roman, serif][PIC][/FONT]
[FONT=Times New Roman, serif]
[/FONT]
[FONT=Times New Roman, serif]Foyer, view from car park side (SW):[/FONT]
[FONT=Times New Roman, serif]
[/FONT]
[PIC]

[FONT=Times New Roman, serif] [/FONT]
[FONT=Times New Roman, serif]Foyer/Trolley park (NW):[/FONT]
[FONT=Times New Roman, serif]
[/FONT]
[FONT=Times New Roman, serif][PIC][/FONT]
[FONT=Times New Roman, serif]
[/FONT]

[FONT=Times New Roman, serif] [/FONT]
[FONT=Times New Roman, serif]The PCN issued by ParkingEye states the car park has a maximum stay time of 0 mins, as such parking is therefore forbidden. A contract cannot be formed as terms for parking have not been offered to, and cannot be accepted by, a driver. Consequently only the Landowner can take action against the driver for trespass, with ParkingEye having no course of action open to them[/FONT]










[FONT=Times New Roman, serif]3. No evidence of Landowner Authority[/FONT]
[FONT=Times New Roman, serif]
[/FONT]
[FONT=Times New Roman, serif]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 restricted days/times, any exemption clauses, grace periods, 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 ParkingEye to strict proof of full compliance:[/FONT]


[FONT=Times New Roman, serif]7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.

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[/FONT]
[FONT=Times New Roman, serif]
[/FONT]
[FONT=Times New Roman, serif]e) the definition of the services provided by each party to the agreement

[/FONT]

RobinofLoxley

happybagger wrote: »

There is no terminal in store it's purely anpr. I assume the 0hrs 0mins refers to the fact that parking is forbidden when the doors close (which they had).

Looks to me like the 0 hrs 0 mins is a typo and an own goal by PE.

Parking surely can't end as soon as the doors close. You can bet customers are still at the check outs at closing time. It will then take a further few minutes to walk to the car, load up and then exit the car park. Unless the signs say the car park closes when the store does, which would be crazy.

POFA Paragraph 9 states ;
9 (1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must:
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c) describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable

From what I can make out on the NTK, it doesn't specify the relevant land on which the car was parked. It just says Home Bargains, no address given.

The NTK also doesn't describe the circumstances in which the requirement to pay parking charges arose. It only says the 'Time in car park 12 mins' and fails to explain the reasons are for a parking charge becoming payable.

They only reason they give is "By remaining at the car park for longer than the stay authorised or without authorisation, in accordance with the terms and conditions set out in the signage"

"The signage states that, as a maximum stay car park, a parking charge is applicable if the vehicle remains in the car park longer than the 0 hrs 0 mins max stay time".

I'd like to see PE providing photos of the signs showing that .

For these reasons the NTK fails to meet with those particular requirements of POFA and therefore PE cannot transfer liability for the charge to the keeper.

Umkomaas

If there definitely isn’t a VRM input keypad arrangement at the store, I suspect the 00:00 might suggest that the PE ANPR system switches to a different mode sometime after the point the store shuts.

If that’s the case, it’s monitoring unwanted access to the car park when the store is closed for business - effectively a trespass catcher.

happybagger

...but only a vehicular trespass. There definitely is no terminal in store, I checked on Thursday.

Thanks both for your input, I will see if there is anything else before sending next week

RobinofLoxley

Umkomaas wrote: »

If there definitely isn’t a VRM input keypad arrangement at the store, I suspect the 00:00 might suggest that the PE ANPR system switches to a different mode sometime after the point the store shuts.
.

If that's the case it would have to say on the signs that no parking allowed after a specified time.

Have we any images of the signs?

Umkomaas

RobinofLoxley wrote: »

If that's the case it would have to say on the signs that no parking allowed after a specified time.

Have we any images of the signs?

I have seen PE signs which convey that message at a Home Bargains store.

happybagger

There is a link to the t&c signs in st #2 above. All the signs are the same (albeit in either English or Welsh)
Actual times are not specified

happybagger

RobinofLoxley wrote: »

From what I can make out on the NTK, it doesn't specify the relevant land on which the car was parked. It just says Home Bargains, no address given.

It states the town (I blanked it out), is that enough to comply?

happybagger

In the absence of further comments or opinion, I will email this off tomorrow
HB