Help. Breastfeeding parking fine

Umkomaas

No more questions, just get it submitted. You might hopefully just squeeze in.

Rmac84

Ok, will adjust and submit asap. Thanks for everyone help.

I will update on progress

Rmac84

I am making me appeal on the grounds of
1. Grace Period
2. Discrimination
3. NO EVIDENCE OF LANDOWNER AUTHORITY
4. SIGNAGE



APPEAL POINT 1 – GRACE PERIOD

The parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which I entered into the ‘contract’ with Britannia Parking once I had found a parking space and taken the time to find a sign and read it.

As stated in the British Parking Association Code of Practice:
13 Grace periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued 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.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
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.

Kevin Reynolds, Head of Public Affairs and Policy at BPA states that:
‘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 explains.
“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.”

The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

The BPA’s guidance does not specify a ‘grace’ period for customers before they purchase a ticket. I had not entered into contract until I could clearly see the signage, which is not visible (see appeal point 4 and the appendix pictures which show obscured and limited signage). Upon entering the car park my 3 month old baby girl was screaming, so I fed her, hence it took 26 minutes for me to enter the car park and then feed baby (see appendix of message sent to my mother telling her where I was and that I was breastfeeding my baby). I also spent time attempting to first find the car park online and then make an online payment. However the website if not very clear and I did not find an obvious method to pay. Then time to put up a buggy and purchase a ticket. Please now refer to section 16 of the British Parking Association Code of Practice:

16 Disabled motorists
16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.
16.2 ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine.
16.3 Operators of off-street car parks do not have to recognise the Blue Badge scheme. But many choose to do so to meet their obligations under the Equality Act. Although a Blue Badge is not issued to all disabled people it is issued to those with mobility problems. So it is a good way for parking operators to identify people who need special parking provision.
16.4 You are at risk of a claim under the Equality Act if you do not discourage abuse of the ‘disabled’ spaces. This means that you need to make sure the spaces are regularly checked to be sure they are not being used by people who do not have a disability.

The Equality Act 2010 covers disabled persons, as well as breastfeeding mothers. Section 16 of the British Parking Association Code of Practice states that “You and your staff also need to realise that some disabled people may take a long time to get to the payment machine.” Therefore, this adjustment for disabled persons should also apply for breastfeeding mothers.

I would argue that 10 minutes is not sufficient grace period for a breastfeeding mother and that additional time should be allowed under the Equality Act 2010. Britannia Parking should provide evidence of their policies for dealing with disabled and breastfeeding mothers and how they comply with section 16. I also argue that the British Parking Association Code of Practice section 13 does not stipulate grace periods before purchasing a ticket.


APPEAL POINT 2 – DISCRIMINATION

Upon arriving to the car park my 3 month old baby girl became agitated and required my to feed her before I had time to purchase a ticket (see attached screenshots of messages I sent to my mother telling her where I was and that I was breastfeeding my baby, proof that this is what I was doing).

Breastfeeding in public places is protected under the Equality Act 2010 for as long as you wish to breastfeed your baby, toddler or small child without an age restriction.

The Equality Act 2010, as stated below in Section 13, says that it is discrimination to treat a woman unfavourably because she is breastfeeding. It applies to anyone providing services, benefits, facilities and premises to the public, public bodies, further and higher education bodies and association.

Equality Act 2010; CHAPTER 15; PART 2; CHAPTER 2; PROHIBITED CONDUCT; Discrimination

13 Direct discrimination

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

(6) If the protected characteristic is sex— (a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding;

We are aware that POPLA is able to request that a parking operator cancels a parking charge if POPLA considers that it has not given reasonable consideration to mitigating circumstances and the mitigating circumstances prevented the motorist from keeping to the parking conditions.

I would argue that 10 minutes is not sufficient grave period for a breastfeeding mother and that additional time should be allowed under the Equality Act 2010. Britannia Parking should provide evidence of procedures for dealing with disabled / breastfeeding mothers where 10 minutes is insufficient.


APPEAL POINT 3 – NO EVIDENCE OF LANDOWNER AUTHORITY

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


APPEAL POINT 4 – 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. There are few signs around the car park and many of them are too low and often obscured by cars (see attached photos). The main signage by the pay terminal is not facing outwards into the car park, so can only be read once at the pay station (see attached photos).

I also believe that the signs tell drivers that ANPR technology is used but DO NOT state what the data captured by the ANPR cameras will be used for. Thus, failing to comply with the British Parking Association following statement:

21.1) You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.

There was neither a contract nor an 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.

I believe the signs at this car park do 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.
The signs are sporadically placed, indeed obscured and hidden in many 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.

Since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, I believe 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.''

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 Britannia Parking 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 Britannia Parking 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.

Rmac84

Post above is my appeal and yesterday I got their response.....so here is an update……

Their response to my appeal basically just says that I stayed 2 hrs 28 mins and only paid for 2 (see bottom for their full response'. Also that they do allow 48 hrs for people to call and pay where they believe they had underpaid. I was not aware that this was possible as hadn’t seen this on the signs.

In response to my appeal points:

Grace Period - They have just referenced the BPA 10 mins. They have not responded to my point regarding the BPA section 16 (and specifically not provided ‘evidence of their policies for dealing with disabled and breastfeeding mothers and how they comply with section 16’).

Discrimination – “Under the Equality Act 2010 there has been no discrimination. Britannia Parking do allow for breast feeding on site however we kindly request users pay for the entire duration of their parking while on site”. I believe they they have not given ‘reasonable consideration to mitigating circumstances and the mitigating circumstances prevented the motorist from keeping to the parking conditions’, which I am aware that POPLA is able to request that a parking operator cancels a parking charge if POPLA if they have not done so.

NO EVIDENCE OF LANDOWNER AUTHORITY – they have merely uploaded a copy of a letter on Britannia own headed paper (see below contents of letter). The landowner name and signature has been blurred out so how does this prove that they have given authority? Surely this could just be a letter that Britannia have created but there is no proof of signature. The letter:

“In order for Britannia Parking to be able to obtain data from the DVLA, we are required to have your written authorisation as follows: British Parking Associations Approved Operators Scheme authorisation. [OBSCURRED] accepts the agreement with Britannia Parking Services and its parent company Britannia Parking group Limited in respect of the above named car park will be carried out in accordance with the requirements of the British Parking Associations AOS Code (Approved Operator Scheme), and hereby authorises the operator and its parent company at their discretion to take legal action to recover the parking charges where they remain unpaid. This Authority letter is intended to be used in order that Britannia Parking is not required to send the services contract to the DVLA which contains commercially sensitive information. The authority letter covers any period that Britannia Parking has been operating the car park and is valid for any parking charge that occurred prior to and after the date of this letter. Please can you sign below confirming authorisation of the above. Signed [OBSCURRED] Name: [OBSCURRED]. Position: Managing Director. Date: 1st June 2015. Yours sincerely, [signature obsurred] , Managing Director Britannia Parking Group”.

Advise please as obviously I asked for a ‘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’. Does this letter cover points 7.3 of the BPA?

SIGNAGE – Provided a birds eye view map of the sign locations and pictures of the signs. They have not responded regarding the height issue of the signs which means many signs are at car level, therefore obscured and makes it less visible for drivers when entering the car park. They have also not addressed that the main signs at the pay machine are not facing outwards into the car park, therefore are only clearly readable when stood in front, not from a car. My appeal stated they must “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 Britannia Parking 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”. I believe they have not provided evidence to these points.

Any advice on how I appeal this point further?

Here is the full letter of their response to my appeal:

This is their appeal response: “A transaction took place at 13:30pm which is 26minutes after the entry, and a 2-hour ticket was purchased for £3.50 however the vehicle was observed for 2 hours 28 minutes.
The data from the machines is processed against the pictures recorded from the ANPR camera and because of the vehicle entered the car park at 13:04pm and exit at 15:33pm – which is over the 2 hours purchased; the system generated a Parking Charge Notice.
We are members of the British Parking Association (BPA) and we follow their Approved Operator Scheme, Code of Practice at all times. Section 13 – Grace Periods, details that we must give the driver a reasonable period of time to read the signage and decide to park or leave the car park. We have a 10 minute grace period at this car park. If the driver has not purchased a ticket or left the car park by the time the 10 minute grace period has been reached, a Parking Charge Notice will be issued, for breaching the terms and conditions of the car park. We also offer a late payment option should an overstay happen, we allow up to 48 hours after the driver has left the car park to call to make a late payment should the driver contact us.
Britannia Parking is an active member of the British Parking Association (BPA) and we follow their Approved Operators Scheme, Code of Practice at all times. Our car parks are regularly audited and our signage at this car Park has been approved by the BPA. We meet all the requirements for our signage as advised under section 18 and 19 for England and Wales or Section 28 for Scotland, of the BPA’s Code of Practice, in regards to signage and notifying the driver of the terms and conditions.
Under the Equality Act 2010 there has been no discrimination. Britannia Parking do allow for breast feeding on site however we kindly request users pay for the entire duration of their parking while on site.
We uploaded the Parking Charge Notice data on 21/08/2017 and requested DVLA Keeper details on 22/08/2017. Keeper details were added to the Parking Charge Notice on 23/08/2017 and a letter was then generated and posted on 23/08/2017.
We received an appeal on 25/09/2017 from the driver of the vehicle. The appeal case was investigated to see why a Parking Charge Notice was generated.
We responded on 25/09/2017 advising it was issued correctly. No second payment can be found. This is pay on entry car park and it is solely the driver’s responsibility to ensure they have fallow the terms and conditions. We have identified the appellant to be the driver and the keeper of the vehicle. This has been determined due to the information provided by in the appeal.
And we therefore find them to be liable for the parking charge notice.”

Quentin

After a popla rejection there's no more appealing.

Wait and see if they take legal action against you and if so come back for advice on dealing with this at the time.

Rmac84

Hi Quentin. Popla haven't made a decision yet. They have given me 7 days to make further comments and then they will review.

Umkomaas

You must rebut anything which is incorrect or you disagree with. You re-emphasise those parts of your appeal which Brit have failed to respond to. I’d particularly rip apart their ‘landowner authority’ in the way you have done so above. Keep all your rebuttal succinct, yet to the point, don’t go off on a lengthy ramble.

You cannot introduce new evidence.

nosferatu1001

So what coments are you planning on sending?
You cant add new appeal points, but you xref your appeal points to the operators pack, and work out what theyve not rebutted or proven, as appropriate, and so you point out to POPLA this means the appeal must be upheld....

Rmac84

Yes just planning to edit the above to highlight what they haven't rebutted or proven.

I was just wondering if anyone had any further comments regarding the above. What are people's thoughts on the landowner authority? And signage height?

Redx

yes, use any and all issues in brief rebuttal points

landowner contract

signage

etc

it cannot introduce new evidence but it can highlight all their discrepancies and failures , like going through their statement with a highlighter pen and adding side notes in the margin (like being at school when teacher highlighted errors and maybe gave the correct details or facts)