Britannia "30 minutes FREE"

parking123

Hi guys!
Been reading through the posts and Newbies thread for the last couple of days and was hoping for a little advice?

Situation:
I received an NTK through the post a couple of weeks ago after my car was parked in a Britannia controlled car park for 22 minutes. The retailer's website said "first 30 minutes free":
[IMG]hxxps://ibb.co/kTHSmG[/IMG]

And the sign at the car park confirmed this:
[IMG]hxxps://ibb.co/jiM3T6[/IMG]

Turns out that tiny small print underneath the 'FREE' section says "you must get a ticket anyway" or something similar.

I disputed this already on the Britannia website (I think stupidly I may have let slip who the driver was too) obviously they responded:
"Our records show that the notice was correctly issued as your vehicle was parked in breach of the Terms and Conditions of the Car Park.
The Parking Charge Notice was issued to your vehicle because you failed to display and valid ticket. The signage states that 30 minutes is free to park, providing you obtain a free ticket from the machine.
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.
Therefore we consider there to be sufficient, clearly visible signage in the car park to draw your attention to the terms and conditions of the parking contract that is on offer. It is the driver’s responsibility to ensure they have read the terms and conditions, by leaving your vehicle in the car park you have broken the terms and conditions and therefore we believe the Parking Charge Notice to be valid and correctly issued."

After re-visiting the car park there are a few signs around that mention the ticket situation, but they're all very small print (especially compared to the FREE section on the tariff board):
[IMG]hxxps://ibb.co/btwbgR[/IMG]
[IMG]hxxps://ibb.co/gdewgR[/IMG]
[IMG]hxxps://ibb.co/hzmsMR[/IMG]

Does it look like I have reasonable POPLA appeal case based on the ambiguous signage? Is it worth bringing up that parking should have been FREE anyway, and that the fine is completely un-representative of any losses?

Thanks in advance for your time!

parking123

..Sorry it seems I couldn't post images as a new user!

Lamilad

parking123 wrote: »

..Sorry it seems I couldn't post images as a new user!

Post the links with http changed to hxxp. One of us will change it back for you

Fruitcake

What did the retail manager say when you complained?

Inadequate signage will be one of your appeal points at PoPLA. There are several other template points for you to crib from in the NEWBIES thread, so you should use all that are relevant.

parking123

Thanks for the quick responses guys! I've uploaded some photos.

The retailer customer support said:
"Thank you for your e-mail.
I am very sorry to hear of this situation, I have passed your email to the store so that they can look into this for you, they will contact you directly, I would advise also contacting the store if you haven't received a reply due to the urgency of this.
If you have any other questions, please do not hesitate to contact us."

It doesn't look like the store have there own email address, and I couldn't get through when calling earlier, but I'll be calling tomorrow afternoon to try and talk to someone.

In regards to POPLA; The NTK looks pretty compliant with POFA 2012 , and I may have already named the driver so should I leave that part out?

So far I'm looking to include:
Unremarkable signage
No evidence of Landowner Authority

Is it worth trying to include the retailer's website?

Thanks again!

claxtome

Images:
https://ibb.co/btwbgR
https://ibb.co/gdewgR
https://ibb.co/hzmsMR

Loadsofchildren123

"Our car parks are regularly audited and our signage at this car Park has been approved by the BPA"


This really irritates me. The BPA CoP says that they have the right to audit and it obliges the keeping of meticulous records - but I very much doubt the BPA has EVER actually carried out an audit - either of the records or of the car park itself. Yet the PPCs continue to pretend they are audited and everything's been approved.


Ask them if they mean by this that a person from the BPA has actually gone to the car park in question and viewed the signage? And can they please say when and identify who it was.


If they don't answer, ask the BPA. The BPA responds quite quickly to email requests. Say that the PPC has written to you on x date asserting that their signage at car park x has been BPA audited and ask them if this is true and when the audit took place, and whether it was a physical audit of the car park itself, or just paperwork showing the wording on the signage and its location?

parking123

Hi guys,

I've drafted up a Popla appeal letter. Any input greatly appreciated:

Dear POPLA Adjudicator,

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I contend that I am not liable for this parking charge on the basis of the below points:

1) The signs in this car park are not prominent, clearly legible and understandable.

2) No evidence of Landowner Authority


1) The signs in this car park are not prominent and clearly understandable:

The signs and the machine tariff board were contradictory, and crowded with different terms:
[image]


so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:
hxxp://vvv.legislation.gov.uk/ukpga/2015/15/contents/enacted
68 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.
It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge,''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.''

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.

It’s very apparent that in the tariff section of the main charge notice sign, stating: “up to 30 minutes FREE” the word “free” is in bold letters and the largest font in the area. All other text is small and unremarkable, especially the wording underneath that particular statement. For this reason I put forward that the operator has gone to deliberate efforts to obscure the information from the driver. As this parking notice was delivered for “failing to display and valid ticket” for the free parking period, I maintain that that small print be, at the very least, the same font size and weight as the wording above, if it were to genuinely be perceived as understandable and legible to the car park user.

I also ask for proof regarding the operator’s last BPA audit. Their letter states: “Our car parks are regularly audited and our signage at this car Park has been approved by the BPA.” From this statement I am led to believe regular physically attended audits are carried out at this location and would like this confirmed with evidence.


2) 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

Redx

put a NOT THE SAME AS BEAVIS paragraph in as well

Coupon-mad

(I think stupidly I may have let slip who the driver was too)

Assume you didn't, and include the usual stuff on other POPLA Britannia threads, about why the NTK is not a POFA one (too late/wording not in accordance with Schedule 4) and the usual template about the operator not showing that the appellant is the individual liable.

The idea is (partly) to frighten Britannia off with a very long appeal.

parking123

Thanks again for the suggestions guys, here's what I have now. Think it looks ready to send?

Appeal re POPLA code: – xxxxxxxx

Dear POPLA Adjudicator,

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I contend that I am not liable for this parking charge on the basis of the below points:

1) The signs in this car park are not prominent, clearly legible and understandable.



2). A compliant Notice to Keeper was never served - no Keeper Liability can apply.

3) No evidence of Landowner Authority


1) The signs in this car park are not prominent and clearly understandable:

The signs and the machine tariff board were contradictory, and crowded with different terms:

so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:
[link]

68 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.

It is submitted that the driver did not have a fair opportunity to read 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:

[link]

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:

[link]

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:

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

[link]
''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.

It’s very apparent that in the tariff section of the main charge notice sign, stating: “up to 30 minutes FREE” the word “free” is in bold letters and the largest font in the area. All other text is small and unremarkable, especially the wording underneath that particular statement. For this reason I put forward that the operator has gone to deliberate efforts to obscure the information from the driver. As this parking notice was delivered for “failing to display and valid ticket” for the free parking period, I maintain that that small print should surely be, at the very least, the same font size and weight as the wording above, if it were to genuinely be perceived as understandable and legible to the car park user.

I also ask for proof regarding the operator’s last BPA audit. Their letter states: “Our car parks are regularly audited and our signage at this car Park has been approved by the BPA.” From this statement I am led to believe regular physically attended audits are carried out at this location and would like this confirmed with evidence.

2) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’
It is my understanding that for an operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. The Driver of the vehicle has not been identified (as confirmed in the operator’s rejection of my appeal, dated 20th of December of 2016) and the Notice to Keeper fails to comply with section 9 of PoFA 2012 (no windscreen ticket was issued), specifically the following passage:

“2) The notice must – f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given – (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;”

The Notice to Keeper that was received (Parking Charge Number

---

, dated

---

of 2016) omits such information. I have included in my POPLA submission the two pages of the notice which confirms that such text is absent. The only instruction in this regard is as follows:

“Please be advised that the driver of the motor vehicle is required to pay the parking charge in full. As we do not know the drivers name or current address, and if you were not the driver of the vehicle at the time, you should tell us the name and current postal address of the driver and pass this notice to them for payment.”

Evidently, the operator has withheld from me (as the registered keeper) the required details of my liabilities in the event that the driver is not identified. This might be an omission on the part of the operator or a deliberate attempt to mislead, but regardless, the Notice to Keeper fails to comply with PoFA 2012 (section 9).
As this operator has evidently failed to serve a compliant NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly elaborated.


3) 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