Difference between on site and parking

[Deleted User]

Umkomaas wrote: »

NEWBIES FAQ sticky, post #3 where you will find various links and ready written appeal sections for you to piece together to form your own appeal in the context of your circumstances.

That's where I looked and it suggested doing a search.

But I'll take another look.

[Deleted User]

Should I add that 2 of the retailers on the site have requested that PE cancel this PCN? And if so I assume it will be under a separate bullet point.

nosferatu1001

Yes. State there is no support from the retailers for this charge

It’ll help if they try court, as it blows their main hope - BEAVIS - out the water. There is no commercial justification if the commercial sites served by the car park dint want this pursued.

[Deleted User]

nosferatu1001 wrote: »

Yes. State there is no support from the retailers for this charge

It’ll help if they try court, as it blows their main hope - BEAVIS - out the water. There is no commercial justification if the commercial sites served by the car park dint want this pursued.

Do I include the emails sent to PE by the retailers?

Umkomaas

[quote=[Deleted User];73649096]Do I include the emails sent to PE by the retailers?[/QUOTE]

No harm in doing that.

[Deleted User]

TryPlease note that this is a vehicle supplied by my employer as a privilege, not a job requirement, and I am unable to get them involved.

POPLA CODE
I am the person responsible for the vehicle and I am appealing this parking charge from ParkingEye at XXXXXXXXXXXXXXXX
To protect the driver, they have not been named.

My appeal as the person responsible is as follows:
1. Insufficient grace period!
2. No evidence of Landowner Authority
3. Inadequate signage
4. No support from on-site retailers for this PCN


1. No period of grace given for the driver to read the additional signs within the car park, or to exit the car park following the parking period.

This matter appears to flow from an allegation of 'overstay' of a mere ELEVEN minutes, despite the fact this is not an overstay at all and is unsupported by the BPA. The actual 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 the parking was first established or at the time the parking bay was vacated.!

The BPA Code of Practice (13.2) states that parking operators "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." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park.

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.

In addition, 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.”

During a BPA Professional Development and Standards Board meeting in July 2015 it was formally agreed that relevant changes to the Code of Practice would be made to ensure compliance with the DfT guidelines regarding grace periods.!

“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

The driver of the car at the time was captured by ANPR cameras driving in to the car park at XXXX and driving out at XXXX on the same date. They were unable to park immediately upon entering the car park due to congestion from other vehicles.

It is very clear from the evidence that ParkingEye have failed to uphold the minimum grace periods set out in the BPA Code of Practice, as the total time in the carpark exceeded the paid period by only 11minutes, a sum of 5 minutes prior to parking, and 6 minutes after the parking period had ended.

Because the car park is poorly designed with regard to flow, drivers were driving round the car park, and then trying to turn right into the entrance road, but because this was backed up, and because people were not letting them in, it caused gridlock for cars trying to exit.

Not only that, the driver had trouble getting out of the space because somebody had illegally parked behind them, (opposite xxxx), and people were also stopped behind them because it was totally gridlocked.

If ParkingEye are supposedly managing this site then they need to ensure legally parked vehicles are not penalised by illegally parked vehicles.

Photos attached.

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


3. 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 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.!

''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.

4. Both “XXXX” and “XXXX” on this retail site have requested cancellation of this PCN as the passenger was a customer in both of those stores during their time in this car park. Please note that proof of purchase has been supplied to both XXXX by bank statement, and “XXXX” by receipt and bank statement.

Attached



Therefore it is respectfully requested that this parking charge request appeal be upheld on every point.

Yours faithfully

[Deleted User]

I'll change 4 to passenger as it wasn't the driver.

Coupon-mad

Not only that, the driver had trouble getting out of the space because somebody had illegally parked behind them, (opposite xxxx), and people were also stopped behind them because it was totally gridlocked.

If ParkingEye are supposedly managing this site then they need to ensure legally parked vehicles are not penalised by illegally parked vehicles.

Remove 'illegally' because they were not breaking any law.

[Deleted User]

Coupon-mad wrote: »

Remove 'illegally' because they were not breaking any law.

Will do, maybe I should explain more that the near side tyres were against the kerb so the vehicle had to be reversed straight out and couldn't because of the car parked behind that wasn't in a marked out bay.

And that it took ages to shuttle back and forth, having to contend with the gridlocked cars as well, in order to finally get out of the space.

Also interesting that I looked at Google satellite view and the parked cars are shown, but all the gridlocked cars waiting to park and to exit have been semi air-brushed out, including one trying to turn right back into the car park.

[Deleted User]

"The near side wheels of the vehicle were against the kerb of a small island, so the vehicle had to reverse straight out, but couldn't because of the cars parked outside of marked up bays. Due to both the gridlocked cars and the cars parked outside of marked up bays it took ages just to shuttle back and forth to enable the vehicle to leave the marked parking bay safely.

If ParkingEye are supposedly managing this site then they need to ensure legally parked vehicles are not penalised by parked vehicles that have not used marked up bays, making it very difficult for vehicles in marked bays to reverse out safely."