PCN Manchester Urban Exchange

beccih1892

As expected the first appeal was rejected as the driver was named. I'm just in the process of drafting a POPLA appeal as per the generous advice given on here, I just wanted to check when is best for me to send this appeal? I know from the response from the PPC I have 28 days but from reading a few threads I am not 100% sure if theres a 'best time'. I will of course post it here for critique before submitting to POPLA.

Thanks in advance

Quentin

Send it when you are happy with it (by the deadline)

beccih1892

Hi all, please see below my first POPLA draft, as you will be aware the driver was identified in the initial appeal. Therefore I had done my research on this forum and stuck with the points I feel are what will carry me through this appeal. Any critique would be greatly appreciated, TIA.

Dear Sir/Madam,

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice Highview Parking have issued against it. I would like to have the parking charge notice cancelled based on the following grounds:

1. Grace period - The car was only 11 minutes over the 1-hour free parking limit
2. Unclear signage - No contract with driver
3. No evidence of Landowner Authority - Highview Parking is put to strict proof of full compliance with the BPA Code of Practice
4. ANPR and BPA Code of Practice non-compliance

1. The BPA Code of Practice (13.4) states that the parking operators “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.”
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 to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

It is very clear from the evidence that Highview Parking have failed to uphold grace periods set out in the BPA Code of Practice, as the total time in the carpark exceeded the period by only 11 minutes. By any stretch of the imagination, these few minutes are well within what an ordinary independent person assessing the facts would consider reasonable.

2. 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

The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only: 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.
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 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: ''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.'' ''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:

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.

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

4. ANPR and BPA Code of Practice non-compliance

Highview Parking are in breach the British Parking Association’s Code of Practice relating to ANPR cameras and associated signage. The code states the following:

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.

The signs at Urban Exchange, Manchester fail to comply with the above clause. The sign does not state what the data captured by the ANPR cameras will be used for, or how long it will be stored, this is a clear violation of the BPA Code of Practice.

The code also states:

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.

21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.

21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• Be registered with the Information Commissioner
• Keep to the Data Protection Act
• Follow the DVLA requirements concerning the data
• Follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.

I contend that Highview Parking have failed to show any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether Highview Parking has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

Coupon-mad

Change:

Grace period - The car was only 11 minutes over the 1-hour free parking limit

to

Failure to adhere to the two Grace periods (the minutes required either side of parking time) as set out in the BPA Code of Practice

...and you MUST be more robust, quoting Kelvin Reynolds of the BPA and both Grace Periods.

beccih1892

Coupon-mad wrote: »

Change:



to



...and you MUST be more robust, quoting Kelvin Reynolds of the BPA and both Grace Periods.

Thanks Coupon-mad, I'll work on this now and report back once I've amended

beccih1892

I've made the following amendments regarding the Grace periods, any other critiques are welcome, thanks again for taking the time to help me with this.

Dear Sir/Madam,

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice Highview Parking have issued against it. I would like to have the parking charge notice cancelled based on the following grounds:

1. Grace periods - Failure to adhere to the two Grace periods (the minutes required either side of parking time) as set out in the BPA Code of Practice
2. Unclear signage - No contract with driver
3. No evidence of Landowner Authority - Highview Parking is put to strict proof of full compliance with the BPA Code of Practice
4. ANPR and BPA Code of Practice non-compliance

1. The BPA Code of Practice (13.4) states that the parking operators “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.”

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 to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) says 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.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”

Link inserted here relating to Kelvin's article

It is very clear from the evidence that Highview Parking have failed to uphold grace periods set out in the BPA Code of Practice, as the total time in the carpark exceeded the free 1-hour period by only 11 minutes. By any stretch of the imagination, these few minutes are well within what an ordinary independent person assessing the facts would consider reasonable.

Coupon-mad

That's better for post #1.

Next time, use the forum's first appeal template. You'd have had Highview skedaddling within hours!

beccih1892

Coupon-mad wrote: »

That's better for post #1.

Next time, use the forum's first appeal template. You'd have had Highview skedaddling within hours!

I know I wish I had of had my sensible head on and done my research in the first instance, from using that template on the other PCN I just couldn't believe how easy it was ! But hindsight is a wonderful thing and if I ever find myself in this situation again I'll be much more prepared thanks to the advice and knowledge of all you !

Is there any other suggestions you would advise for the POPLA draft before submission or do you feel it's strong enough considering the no keeper liability point going down the drain :doh:

Coupon-mad

You could lay it on thick about what slightly delayed you in parking and/or leaving, so the POPLA Assessor can picture the scene.

e.g. the car park was very busy because...' or 'this car park is narrow and you have to wait to manoeuvre in/out, and before parking, as it is full of pedestrians, trolleys, and cars reversing in the busy (holiday?) period.' etc. etc. They are likely to be swayed by some details from you, as 11 minutes is clearly OK all told, as the non-parking activity either side of parking time.

Not that you were delayed as your child threw up (or whatever!). Make it relevant to the car park, how busy it is, small, narrow to manoeuvre, queues waiting to park, queue to leave, etc. Bad weather, if relevant, is OK to mention too, or a lorry blocking the exit, think about it all!

beccih1892

Coupon-mad wrote: »

You could lay it on thick about what slightly delayed you in parking and/or leaving, so the POPLA Assessor can picture the scene.

e.g. the car park was very busy because...' or 'this car park is narrow and you have to wait to manoeuvre in/out, and before parking, as it is full of pedestrians, trolleys, and cars reversing in the busy (holiday?) period.' etc. etc. They are likely to be swayed by some details from you, as 11 minutes is clearly OK all told, as the non-parking activity either side of parking time.

Not that you were delayed as your child threw up (or whatever!). Make it relevant to the car park, how busy it is, small, narrow to manoeuvre, queues waiting to park, queue to leave, etc. Bad weather, if relevant, is OK to mention too, or a lorry blocking the exit, think about it all!

I've added the following using the advice given above, could you please let me know if this is relevant or if I need to add/take away/change anything? TIA

Dear Sir/Madam,

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice Highview Parking have issued against it. I would like to have the parking charge notice cancelled based on the following grounds:

1. Grace periods - Failure to adhere to the two Grace periods (the minutes required either side of parking time) as set out in the BPA Code of Practice
2. Unclear signage - No contract with driver
3. No evidence of Landowner Authority - Highview Parking is put to strict proof of full compliance with the BPA Code of Practice
4. ANPR and BPA Code of Practice non-compliance

1. The layout of the car park within this establishment is narrow which can make it a difficult task to manoeuvre in and out of the parking bays and around corners, which was the case in this instance. As it is based on a retail park there were multiple pedestrians are on the scene, and also other vehicles manoeurving in and out of parking bays which added additional time before being able to park up. Not only this but with it being the last Friday of November and the 'Black Friday' sales in place there were increased volumes of vehicles and pedestrians. The aspects mentioned meant extra time and care had to be taken upon the vehicle parking up and exiting.

Another valid point I bring up is with this car park being in a city centre location (and again as mentioned with it being 'Black Friday') you are coming straight off an extremely busy main road, which of course warrants a queue of traffic coming into the establishment before parking up. From the direction the driver came there is a set of traffic lights to allow vehicles to turn right into the car park. Due to the volume of traffic this already caused a delay in getting in and manoeuvring around.

On exit of the car park there is a one way system in place in which you can only turn left, on this particular day there were road works going on outside of the establishment which again meant extra time and care was taken upon exiting.

The BPA Code of Practice (13.4) states that the parking operators “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.”

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 to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) says 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.

Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”

Link

It is very clear from the evidence that Highview Parking have failed to uphold grace periods set out in the BPA Code of Practice, as the total time in the carpark exceeded the free 1-hour period by only 11 minutes. By any stretch of the imagination, these few minutes are well within what an ordinary independent person assessing the facts would consider reasonable.