Incorrect signage?

scamdodger

Unsuprisingly, Parking Eye dimissed my appeal. Here' my POPLA appeal and I would be very grateful if forum members would be kind enough to review and comment.
My main defence is lack of signage and relies on a number of photographs which I have included.


I am appealing this parking charge as the Registered Keeper of the vehicle.
Primarily, I believe that the signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. The poorly placed and obscure signs were not seen by the driver, are in very small print and the terms were not readable to the driver.
The driver was a young/inexperienced person and they used the car park in what they believed were emergency circumstances, due to an unusual noise and the engine light coming on, and nowhere else convenient to stop close by. After stopping, the driver left the vehicle and car park on foot, in a distressed state, in order to seek assistance. Having eventually been persuaded that the situation was not critical and that the car could be safely returned the short distance home, the driver returned to the vehicle and left the car park.
The driver did not see the relevant contract signage for the following reasons;
1. They were familiar with the car park, which had been visited on previous occasions as a guest at the club, but were unaware of the recent installation of parking control.
2. They drove straight into the car park, past the relatively small forbidding sign* ‘Patrons Only’ and parked immediately on the right hand side in the closest available space. This area does not have the main signage with terms and conditions, as indicated on the photograph attachments. Contract signs are at a distance (nearest 25 metres away), some facing inwards and are mounted on posts such that the lowest point is over 2 metres from ground level.
3. The case of Vine v London Borough of Waltham Forest in 2000 found in favour of the defendant. This was in view of the absence of any notice on the wall opposite the parking space and the plaintiff's distressed state, the reason why the plaintiff parked and left her car hurriedly.
4. The driver left the car park on foot, unaware of and therefore unable to accept the contract conditions, because they could not be seen from the area where the car was parked.
*In the case of the ‘Patrons Only’ entrance sign, there is no contract to park as a non-member. I refer to the cases of PCM vs Bull, Horizon vs Guildford, etc. Therefore it's an issue of trespass rather than the breach of contract that Parking Eye is trying to enforce.
The entrance sign in this case, "Patrons Only", does not offer any contractual licence to park from the outset. If the driver was not a patron they would trespass immediately. There are no terms within this initial signage permitting unauthorised vehicles to remain on the land for any period. There was no contractual agreement to park at all. It is my case that the terms of that sign are not a general parking contract that all motorists can agree to in order to park at the site.
It would have been possible to provide a contractual sign that did not offer parking in general terms to all motorists, but exempting patrons. Parking Eye has not done so. The signage is, accordingly, a prohibition. Here there was no contract agreed with the driver to park or not.

At the time of the alleged offence, the club was closed, with the car park virtually empty. Even if the signs had been seen and contract accepted, it still would have not been possible to enter the vehicle registration into the terminal at the club entrance.

I attach a number of photographs in evidence of the fact that the driver was not able to see any notices of terms and conditions from where the vehicle was left. Neither were there any visible contract notices on the pedestrian route in and out of the car park. Therefore no contract was seen or accepted. The contract signage layout does not take into account drivers who may stop in this area of the car park and leave without visiting the club, as happened in this case.

Photographic evidence;

https://imgur.com/lPCd6oX
1 Entrance to car park with small ‘forbidding’ sign to right. Vehicle was left in the space adjacent to grey box/pole in background. Note there is no signage to either side, both on the house wall or fencing.

https://imgur.com/anZ63Wy
2 The vehicle was left in the furthest space from the camera (next to grey box). No visible contract signage.

https://imgur.com/dFmcZaX
3 The drivers front view upon exit from a vehicle in this parking space. No obvious signage visible.

https://imgur.com/WgYhneT
4 The drivers rear view upon exit from the vehicle in this parking space. Very distant and unreadable signage is on the far side of the car park.

https://imgur.com/H4TTu88
5 Passenger side view from parking space. Again, very distant unreadable signage on the far side of the car park. Another sign just visible to the far right which is pointing away and therefore cannot be read.

https://imgur.com/CAjOt7C
6 The nearest contract signage is approximately ten parking spaces (25 metres) away to the left from where the vehicle was left.

https://imgur.com/jaC1YRZ
7 Aerial view from Google maps.Vehicle was parked in bottom right hand space, closest to the entrance. There is no contract signage in this area.

The layout and positioning of the signs fail to meet the British Parking Association (BPA) Code of Practice;
Section 18.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 of the BPA Code of Practice continues: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. In addition to this, I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge. POFA 2012 defines “adequate notice” as follows: “(3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land”.
Unlike the findings regarding the Beavis case car park, the driver here was certainly not 'bound to' have seen the terms nor could be considered to have 'agreed' to a parking contract as Mr Beavis did.

In their template documentation, Parking Eye state that they have authority to operate and issue PCN’s on all of its sites from the landowner. This must be proved.
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, I require that they provide a full copy of the contemporaneous, signed and dated, 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).
Parking company 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 and basic information such as the land boundary and bays where enforcement applies/does not apply. In addition, 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 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 Code of Practice 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.

Parking Eye has provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed
when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
Parking Eye has not provided any evidence to show that their system is reliable, accurate or maintained.

Parking Eye has failed to answer the following questions I posed;
1. Whether the charge represents damages for breach of contract.
2. To provide dated photos of the signs that they say were on site and their positions, which they contend formed a contract.
3. To provide all photographs taken of this vehicle.

Parking Eye has rejected my request to cease processing my personal data on the grounds that they believe they will not cause unwarranted and substantial damage and distress. They know nothing of my personal circumstances. Moreover, the Data Protection Act defines substantial distress as a level of upset, or emotional or mental pain that goes beyond annoyance or irritation, strong dislike, or a feeling that the processing is morally abhorrent. Recently, Parking Eye was singled out in the House of Commons, amongst other private parking companies, because of their shameful business tactics, which I do find morally abhorrent.

Coupon-mad

It's good to see a POPLA appeal with photos and your own argument about signs.

On the actual appeal document, make sure the pics are not links, but are actual images embedded in the word document like a story with pictures, leading the POPLA Assessor to the right conclusion!

scamdodger

Thanks CM. Let's hope they see sense!

scamdodger

Just received the result of my POPLA appeal; unsuccessful.
They didn't buy my main reasons regarding inadequate signage and completely ignored what I thought was a very good point about Landowner Authority. I challenged this (and other points) as part of my appeal and the assessor has made no mention of the fact that Parking Eye did not provide any evidence, either a contract copy or witness statement. On several other cases I have read, when Landowner Authority has been challenged and no evidence supplied by the PPC, then the assessor has found in the appellants favour.
Where do I go from here? Any point in complaining to POPLA?
Copy of the appeal assessment and decision herewith:

Decision
Unsuccessful

Assessor Name
Adele Brophy

Assessor summary of operator case
The operator’s case is that a Parking Charge Notice (PCN) was issued due to remaining at the car park for longer than was made permitted.


Assessor summary of your case
The appellant’s case is that the driver had visited the site on previous occasions and was unaware of the recent installation of parking restrictions. The appellant has advised that there are no contract parking signs within the area the vehicle parked and the closest sign is 25 meters away, the appellant has advised that the case of Vine v London Borough of Waltham Forest in 2000 is relevant in this case as there was no signage on the wall opposite the parking space. The appellant has advised that the driver left the site on foot and therefore was not able to accept the contract conditions because the signs could not be seen from where the vehicle was parked. The appellant has advised that the signage is in breach of the British Parking Association (BPA) Code of Practice. The appellant has provided photographic images in support of their appeal.


Assessor supporting rational for decision
After reviewing the evidence provided by both parties, I am not satisfied that, the appellant has been identified as the driver of the vehicle at the time of the parking event. The operator is therefore pursuing the registered keeper of the vehicle in this instance. For the 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 operator has provided a copy of the notice to driver issued and the notice to keeper; after reviewing these I am satisfied that, the operator has met with the requirements of PoFA 2012.
The terms and conditions of the site are, “For use only whilst registered at Felixstowe Trade & labour Club. Felixstowe Trade & labour Club patrons must enter their full, correct vehicle registration into the terminal at the club entrance to be entitled to free parking for the duration of their stay. Failure to comply with the terms & conditions will result in a parking Charge of:£100”. The operator issued a PCN due to remaining at the car park for longer than was made permitted. The site operates an Automatic Number Plate Recognition (ANPR) System. The operator has provided photographic images of the appellants vehicle captured entering at 10:26, and exiting at 11:29. The photographic images of the appellant’s vehicle provided confirm that the appellant’s vehicle was on site for one hour two minutes.
The appellant has advised that there are no contract parking signs within the area the vehicle parked and the closest sign is 25 meters away, the appellant has advised that the case of Vine v London Borough of Waltham Forest in 2000 is relevant in this case as there was no signage on the wall opposite the parking space. The appellant has advised that the driver left the site on foot and therefore was not able to accept the contract conditions because the signs could not be seen from where the vehicle was parked. The appellant has advised that the signage is in breach of the British Parking Association (BPA) Code of Practice. The appellant has provided photographic images in support of their appeal.
Within Section 18.1 of the British Parking Association (BPA) Code of Practice, it states, “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. 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. You must use signs to make it easy for them to find out what your terms and conditions are”. In addition, section 18.2 states, “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of”. Furthermore, Section 18.3 of the BPA Code of Practice states, “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”3.I consider the photographic evidence to show that the operator met the minimum standards set by the BPA. I also consider it clear that parking is for patrons only. The driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking.
The appellant has advised that the driver had visited the site on previous occasions and was unaware of the recent installation of parking restrictions. Section 18.11 states that “Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes”. Having reviewed the evidence provided by the parking operator I can see there is evidence of signage in situ at the site on the 15 November 2017, I am satisfied that the operator has allowed a reasonable period for regular visitors to familiarise themselves with the changes.
POPLA is evidence based, after reviewing the evidence provided by the appellant I do not consider this sufficient to disprove that provided by the operator. I note the appellant’s comments and the reason for the driver parking at the site in question. However, when looking at appeals, POPLA considers whether a parking contract was formed based on the evidence provided by both parties. While I acknowledge the appellant has advised that the driver stopped in an emergency due to a noise from their vehicle and an engine management light being on, this would not prevent the driver from complying with the terms and conditions of the site.
POPLA cannot allow an appeal where a parking contract was formed, and the motorist did not keep to the terms offered. I note the appellant has referenced previous court cases in regards to their appeal, I note that these are county court cases and not ones we would look at ahead of larger precedents such as Supreme Court Decisions.
Based on the evidence provided, a parking contract was formed by the driver’s decision to enter the location and park. By remaining at the site without being registered, the appellant driver failed to meet the terms and conditions of that parking contract. As such, I can only conclude that the operator has issued the PCN correctly

nosferatu1001

The sumary didnt mentuion landowner authority at all - assuming your appeal did, then of course an appeal to POPLA has merit - the asssessor has failed in their duties.

scamdodger

Thanks. Post #42 shows my POPLA appeal, which definitely mentions Landowner Authority. I have complained, but I'm guessing it is unlikely they will change their decision, even though, as you say, the assessor has plainly failed in their duty.
Watch this space for the expected weasly response!
Assuming they do, of course....

Coupon-mad

Have you submitted the complaint yet? I think the Assessor hasn't checked the appeal and evidence properly at all, and if you are still able to add anything by email to the complaint, ask why:

- in the 'Assessor summary of your case' she missed 'No Landowner Authority'? So she didn't even read your appeal properly.

- in the 'rational' (which needs an 'e' on the end...Jeez POPLA, you've never put this typo right in 3 years!) she says: ''The operator has provided a copy of the notice to driver issued and the notice to keeper; after reviewing these'' (errrmmm... 'these'?) It was ANPR, no NTD existed.

What has she reviewed? There wasn't a NTD and if 'POPLA is evidence based' what has she accepted as evidence of landowner authority? Rant and escalate the complaint to the Lead Adjudicator, stating that there has been an error in PROCEDURE.

Be careful not to just say 'I disagree' or 'she got it wrong'. Error in procedure.

scamdodger

Thanks.
I probably jumped the gun and should have waited for your valued points to include in the email (below) that I have already sent.
However, I did use the phrase 'procedural error'.
How do you suggest I contact the Lead Adjudicator?

[FONT=&quot]With regard to the appeal, reference **********, I would like to complain on the following grounds.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I believe a procedural error has occurred. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I made a number of points in my appeal and whilst the primary one was dismissed, it appears that the others were not considered at all.[/FONT]
[FONT=&quot]In particular I refer to the fact that I challenged Parking Eyes!!!8217; authority to issue PCN!!!8217;s on the car park land and requested that they should provide either a copy of the contract or an appropriate witness statement. No evidence was submitted by Parking Eye. [/FONT]
[FONT=&quot]There have been numerous past cases assessed by POPLA where, if the parking company did not provide evidence of landowner authority, the assessor found in the appellants favour. I can provide further details, but I imagine you will already have details of such cases on file.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Please note that this is not new or additional information; these points formed part of the original appeal and from the investigation findings it appears they were not considered.[/FONT]

Coupon-mad

Wait and see, and if you get a fob off, add the observation I made that she appears not to have read the appeal or the evidence properly or is getting muddled up with another case where there was a Notice to Driver (as she refers to it).

What you've written is fine and as long as you uploaded the final copy in full, of your appeal then how she missed 'no landowner authority' is astonishing.

Looks cut & dried to me, POPLA made an error and should reverse it (we've seen that happen ONCE)!

scamdodger

Response from POPLA today;

[FONT=&quot]Your complaint about POPLA[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Thank you for your email dated 24 April 2018, which was passed to me by the POPLA team, as I am responsible for responding to complaints.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I note from your correspondence that you are unhappy with the decision reached by the assessor in your appeal against Parking Eye Ltd and you consider that there has been a procedural error.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I have reviewed the assessor!!!8217;s decision and I consider that a procedural error may have occurred, which may change the outcome of the initial decision reached.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]As such, I will complete a full review of your case and respond to you within the next 10 working days. It is important to note that financial recompense will not be awarded if a procedural error is identified and my review may not change the outcome of the decision.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]In closing, I thank you for bringing this matter to our attention and I apologise for any inconvenience caused. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Yours sincerely[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Amy Smith[/FONT]
[FONT=&quot]POPLA Complaints Team

[/FONT] So there is still a glimmer of hope.
[FONT=&quot][/FONT]