Tower road newquay POPLA appeal

SharkMan

Tower road.


Here ist mine popla. Excuse the screwy fonts it looks better in the PDF!

Reference: Parking Charge Notice - xxxxxxxx

Dear Sir or Madam,

I am writing to challenge a parking charge notice issued on the x September 2017 by ParkingEye Ltd, operator of Tower Road car park, Newquay. They claim that the driver of the above mentioned vehicle parked there on xxx August 2017 and had not purchased for the appropriate parking time or remained at the car park for longer than permitted.

This appeal is based on the following factors:

• Insufficient Grace Period.
  The operator failed to adhere to the British Parking Associations (BPA) Code of Practice Grace Periods.
• No evidence of landowner authority.
  ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass.
• Inadequate Signage.
  Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver.
  
  1. Insufficient Grace Period
  
  The BPA Code of Practice clearly highlights within section 13 that a company’s approach to parking management must allow a vehicle “a reasonable period without having their vehicle issues with a parking charge notice.”
  
  
  13.2 You 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.
  
  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.
  
  The BPA sets a minimum of 10 minutes just to leave, not a maximum grace period. As Kelvin Reynolds of the BPA quoted in the news article ‘Good car parking practice includes ‘grace’ period’: “…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 and either drive away or pay for a ticket,” he explained.
  
  ParkingEye’s ANPR camera captured the vehicle entering the car park at 11:06, and leaving the car park at 15:18.
  
  The total time from arrival to exit was 4 hours and 11 minutes. Sufficient parking was purchased for 4 hours at £x.xx. The purchased ticket shows a purchase time of 11:17. (attached)
  
  Being a hot day during the summer holidays, it was particularly busy with families, small children, dogs and surfers making their way through the car park.
  
  The car park is a confusing layout with 3 separate sections that leave people unsure that they are in the right place. The parking bays themselves are quite narrow and take time to maneuverer with campervans and other large vehicles present. Once parked the driver had to walk a distance to read the sign and try to make out the costs and terms and conditions. The terms and conditions were too small to read. The driver then had to walk back to the vehicle to get the correct change and then on return, queue at the machine to make payment.
  
  10 minutes to find a space, ensure satisfaction to remain in the car park, find the correct change and then queue up to pay is very reasonable on a busy beach day during the school holidays.
  

At the end, the vehicle took just 1 minute to leave the car park, despite having to wait for other cars to leave first.

All in all 11 minutes of grace period is more than fair during the peak season with so many factors to take into consideration and following the guidelines of the BPA.

It is clear from the evidence that ParkingEye Ltd have failed to uphold and consider the necessary grace periods set out in the BPA Code of Practice.


2. No evidence of landowner authority

ParkingEye Ltd. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I request that ParkingEye Ltd should provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

A witness statement or basic signed paper does not provide the level of evidence needed to show the requirements of the BPA such as such as charging 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. The charge 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


3. Inadequate Signage

The BPA Code of Practice clearly states that:

18.1 A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.


Keeping this paragraph in mind, there was categorically no contract established between the driver and ParkingEye Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. When the driver arrived at the car park it was very busy and there was a crowd of people around one of the few signs, positioned quite far back into a rocky, grassy area. The sign was therefore difficult to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located and the terms and conditions illegible.

As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this 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.

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 and poorly placed – particularly to a driver entering the site. In fact, some signs are obscured and hidden in some areas with large areas of the car park without visible signs. The signs 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. In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

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 the majority 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 operator’s 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:

SIGNAGE LINK HERE

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

SIGNAGE 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.”

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 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.

Based on these points, it is believed that ParkingEye Ltd are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions and driver safety. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, request that ParkingEye Ltd be required to provide strict proof of exactly where the car was parked (from photos taken in the same conditions and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date, time and lighting condition of the alleged event. I submit that full terms simply cannot be read safely from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. In addition to this, it is requested that any neighbouring signs to the entrance and vehicle parking location to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted or the driver misinformed.



In summary and on the basis of these 3 major points, I respectfully request that this parking charge notice appeal be upheld.


Yours faithfully,


Shark Man

Redx

Smart run the FISTRAL BEACH one , the other private car parks are Parking Eye (who also used to run Fistral Beach too)

there is also a faceache usergroup that helps on these, and ivor pecheque has posted about various issues and signage (he won in Altrincham court a few years ago, see pranksters old blogs)

KeithP

SharkMan wrote: »

Tower road

So you're not looking for Fistral Beach Car Park signs.

It is quite important to get these details right.

SharkMan

Yes sorry - Fistral smart images are everywhere, but Tower Road you just get an out of date fees board or the entry sign

Redx

this one is a few years old but gives various info about the sign back then (which may have changed for all I know)

https://forums.moneysavingexpert.com/discussion/4761489

talk to the faceache group if you want 2017 signs

and read this recent thread too

https://forums.moneysavingexpert.com/discussion/5705258

Umkomaas

talk to the faceache group if you want 2017 signs

https://www.facebook.com/groups/NewerNewquay/about/

Or PM IvorPecheque (do a member search) to see if he has any current ones.

SharkMan

Success! An interesting summary as well because it references the time of the ticket as opposed to moment of entry! (will post in success forum)

Umkomaas

Well done. I’ve commented against your post in the POPLA Decisions sticky, with a sugggestion for how you can send PE some of their own garbage back to deal with.

Redx

a nice summing up by that popla assessor , especially as the drivers details were given out so no POFA2012 this time

they really "get it" and PE were shown up for the charlatans they are when demanding money with menaces from the legitimate paying public

ie:- from the driver who had actually paid for the time parked and only took 1 minute to leave the premises (a record in the summer months , lol)

well done

Coupon-mad

Yay, very well done, nice argument about Tower Road car park's confusing 3-area layout, too:

https://forums.moneysavingexpert.com/discussion/comment/73434908#Comment_73434908

ParkingEye must rinse so much money from people who pay them for 10-15 minutes 'overstay' either side of paid-for time, which isn't an overstay at all. It is obscene.

Perhaps you might consider, while your anger is still simmering, writing to your MP to tell them about this intimidation. This is a copy of a post by Bargepole:

"Some action at last:

http://services.parliament.uk/bills/2017-19/parkingcodeofpractice.html

This Private Member's Bill has Government and cross-party support, and stands a good chance of making it into statute.

The full text of the clauses will be published nearer the date of the second reading, but my sources tell me it's something we should support.

Now would be a good time to write to your MP urging them to support it."


ParkingEye at Newquay were singled out in a debate; also show this to your MP in case they were asleep or didn't attend, and missed it - look at Steve Double's contributions in particular, about PE in Newquay:

https://hansard.parliament.uk/commons/2017-03-21/debates/382789C8-0168-4C4B-8260-0540AF83C7D3/DVLAAndPrivateCarParkingCompanies

Tell you what, how about emailing Steve Double MP at Newquay, with a link to this thread, to give him an example of how to win at POPLA (as we do every time at this location when the 'overstay' is clearly not one at all, and just part of a reasonable grace period). I'd give him your POPLA code and date of decision, and your POPLA appeal wording and the decision, and encourage him to share it for other victims to learn from/copy.

Your case is also very useful in that the assessor found the entrance signs do NOT prominently inform drivers that their time is starting on arrival, therefore POPLA counted from the time you paid at the machine. They only did this because you argued the case well. Sadly other victims won't.