Car Parking Partnership PCN

Panzellus

Hello all,

So unfortunately my car had another PCN placed on it shortly after I won at POPLA with the previous PCN (thanks again to all those who helped with that appeal).

The PCN was issued at a permit-only car park at a university. The car had a valid permit (which is evident in the evidence photos of CPP) but the PCN was issued because the car parked in bays that are allocated for "Authorised Visitors Only" which also states "All Vehicles must display an authorised visitor ticket". I would like to argue that "authorised visitor ticket" could very well be a permit, as a valid permit does authorise a visitor to park there - what do you think about this?

With regards to the appeal, I (as the keeper of the car, and only the keeper of the car) appealed to CPP with the template appeal, which was unsurprisingly rejected. I have drafted a POPLA appeal below (mostly copy/paste from the templates - red writing is my edits/additions), and added some points from my initial appeal. I have date and time stamped images of covered up signs/illegible signs which were taken the day after the PCN was issued. It has also been over 56 days since the PCN was issued and no NtK has arrived.

Thank you in advance for your advice.

POPLA Appeal:

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxxxx and am appealing a parking charge from CPP on the following points:

1. 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. They are ‘forbidding parking’ signs which offer no contract a driver can accept
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3. A compliant Notice to Keeper was never served - no Keeper Liability can apply

1. 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. They are ‘forbidding parking’ signs which offer no contract a driver can accept

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:

imgur.com/a/AkMCN

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:

2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

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.

Evidence showing obscured signs where not all the text is visible:

[Three photos of obscured signs]

Evidence showing a sign too far away to read (photo was taken at the edge of the bush so could not get any closer) making it not possible to read all of the text as it’s too small to read:

As shown, the signs 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:

www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''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:

ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''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:

bailii.org/ew/cases/EWCA/Civ/2000/106.html

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.

Furthermore, the signs are ‘forbidding parking’ as they state that ‘Staff Permit Holders Only’ are allowed to park. If the driver does not have a permit, then they are ‘forbidden’ from parking there which is not an invitation to park and therefore no contact is created. The matter then becomes a case of trespass, for which nominal damages can only be claimed by the landowner (and not the PPC) through civil courts. Several recent court cases support the argument being placed here:

(1) PCM-UK v Bull et all B4GF26K6 [2016]: residents were parking on access roads. The signage forbade parking and so no contract was in place.
(2) UKPC v Masterson B4GF26K6 [2016]: it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.
(3) Horizon Parking v Mr J C5GF17X2 [2016]: it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.

Case (3) is very similar to the matter in this appeal, as it pertains to parking in a permit holder only car park (where having a permit, or as in this case an ‘authorised visitor ticket’ are the only ways of parking). A summary of the judge’s ruling on the forbidding nature of the sign is as follows:

“Judge finds this is a forbidding notice, not an invitation to park on certain terms. It disallows other parking. Could be construed as only applying to permit holders, not others who are forbidden from entering the area. IF this is the case, it only offers to permit holders. This therefore means this is a landowner issue for trespass. The agreement between PPC and landowner does not allow for Horizon to collect for trespass issues. This notice forbids any parking at all except by permit holders and is not an offer at all. Does not make a contractual offer, so they cannot claim against [defendant] for this.”

This ruling clearly states that no contract is offered to anyone who is not a permit holder, which moves the matter to being one of trespass and the PPC cannot claim on the grounds of trespass therefore have no right to issue the driver with a parking charge.

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. Additionally, the ‘forbidding signage’ does not offer a contract to non-authorised visitor ticket holders, meaning the operator does not have authority to issue a parking charge as there is no contract as the issue is one of trespass, for which only the landowner can claim damages for.

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

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.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a 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 given.

Best regards,

Registered keeper

Coupon-mad

The PCN was issued at a permit-only car park at a university. The car had a valid permit (which is evident in the evidence photos of CPP) but the PCN was issued because the car parked in bays that are allocated for "Authorised Visitors Only" which also states "All Vehicles must display an authorised visitor ticket". I would like to argue that "authorised visitor ticket" could very well be a permit, as a valid permit does authorise a visitor to park there - what do you think about this?

Yes, I agree.

But why does your POPLA appeal say the signs ask for 'Staff Permit Holders Only'? Do the signs use that term, and not "Authorised Visitors Only". Which is right?

After point #3, add the usual template that the appellant has not been shown to the the person liable (see post #3 of the NEWBIES thread, as it is there).

And because there is a new (I hope not rogue, just clueless) Assessor at POPLA now who clearly has not been trained properly, in case you get them, I would add this at the end:

Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given within 56 days. POPLA Assessor, if you think that looking at the Notice to Driver instead, and comparing that to the POFA is acceptable (as happened in a very wrong 'Gemini Parking' POPLA decision prior to Christmas that is in the public domain and needs addressing as a terrible POPLA error and woeful lack of POFA training) then you are not correct, must NOT take that step and must refer this case first, to your Lead Adjudicator, because POPLA is not entitled under any rule of law to make a finding against a registered keeper in a case without a Notice to Keeper. This will continue to be stated in appeals until all POPLA Assessors get this simple matter right.

Panzellus

Thanks for your reply. I've added this point (after the first point about signage) with regards to the what being an authorised visitor means:

2. No evidence any contravention took place or that the driver was not an ‘Authorised Visitor’

There is no evidence that any contravention took place or that the driver (who has not been identified by CPP) was not an ‘Authorised Visitor’ and POPLA cannot assume this in the absence of facts and evidence from the operator.

The car was parked in a permit-only car park and the car did have a valid permit clearly showing in the windscreen – this was photographed by CPP in their evidence photos for issuing the PCN. The Issue Reason CPP have stated on the PCN is “In Restricted Area”, but this is incorrect as the car was parked next to a sign stating "Authorised Visitors Only" and "All Vehicles must display an authorised visitor ticket". Given that a valid permit (such as the one the car was displying at the time) allows the vehicle to parked in that car park, it is an “authorised visitor ticket” because the permit signifies that the visitor is authorised to be parked there. Whilst other forms “visitor tickets” may exist, in the car park in question, a permit is an authorised visitor ticket and since this was clearly displayed CPP have erroneously issued a PCN to the car.

Coupon-mad wrote: »

But why does your POPLA appeal say the signs ask for 'Staff Permit Holders Only'? Do the signs use that term, and not "Authorised Visitors Only". Which is right?

Apologies for the error, it should say 'Authorised Visitors Only' and does in fact say that in my personal draft. There are staff permit only signs, authorised visitor only signs and disabled parking only signs - the car was parked next to bays that had the authorised visitors only sign there.

Coupon-mad wrote: »

After point #3, add the usual template that the appellant has not been shown to the the person liable (see post #3 of the NEWBIES thread, as it is there).

I have added that template point to the end of my appeal with the title:

The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

Coupon-mad wrote: »

And because there is a new (I hope not rogue, just clueless) Assessor at POPLA now who clearly has not been trained properly, in case you get them, I would add this at the end:

I have also added that paragraph at the end of the appeal. It's quite worrying to see that this is necessary!

Coupon-mad

Nice one, let us know when you get a 'POPLA evidence pack' from CPP, if they contest this appeal. They might fold!

Panzellus

They did submit an evidence pack, though it's just as bad as the last time and still has no valid proof of landowner contract, amongst other points I've raised. I've edited my rebuttal from last time, and I'm going to submit it tonight unless there are any glaring issues.

Dear POPLA Adjudicator,

I have read through the 33 page “evidence pack” Car Parking Partnership (CPP) have submitted with regards to my POPLA appeal and it is clear that it is a quickly hashed template with no acknowledgement of my appeal or its arguments. In response to the pack, I have the following points of rebuttal:

1. No landowner contract nor legal standing to form contracts or charge
2. A compliant Notice to Keeper was never served – no Keeper Liability can apply
3. Poor signage that does not comply with BPA:CoP

1. No landowner contract nor legal standing to form contracts or charge

Page 5 of the evidence pack from CPP states the following:

‘Car Parking Partnership can confirm that the above site is on private land, is not council owned and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent).’

This is the only “evidence” CPP have submitted which claims they have landowner authority to operate and issue Parking Charge Notices. This evidence is worthless and nowhere else in the pack do CPP provide a full/redacted landowner contract nor a witness statement as actual evidence that they have a landowner contract. CPP have failed to prove that they have the authority to issue Parking Charge Notices at the site in question which means the Parking Charge Notice issued to the driver is invalid - I therefore respectfully request that my appeal be upheld and the charge dismissed.

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

I highlighted in my POPLA appeal that:

‘The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a 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.’

Within their evidence pack, CPP have proved that they did not follow the requirements in PoFA 2012 because they requested the keeper details from the DVLA after the 56 day deadline. The PCN was issued on [issue date] and 56 days later, starting from the next day, is [NtK deadline date] but as shown in the History timeline on page 5 of the evidence pack ‘Request queued to DVLA for keeper details’ was only issued on [date after NtK deadline], which is 17 days after the deadline for the keeper to receive their NtK. As CPP have offered their own evidence for not following PoFA 2012, I again respectfully request that my appeal be upheld and the charge dismissed.

3. Poor signage that does not comply with BPA:CoP

The illegibility of signage is in direct breach of the British Parking Association: Code of Practice (BPA:CoP) – this particular sentence of Section 18, Paragraph 3 (S18P3):

‘…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. …’

I argued in my appeal that it was not possible to read all of the signage as the text was too small and the signs were too far away (as evidenced by my photographs). The evidence pack submitted by CPP supports this argument because remarkably it is not possible to read the fine print text in the sample signage images, nor the photographs that CPP provided in their evidence pack either. Whenever I zoom into the images of the signs to read the fine print, it gets too blurry to read which makes the complete understanding of the sign impossible to ascertain. Furthermore, the date-stamped photographs of the signage that CPP have in their evidence pack does not accurately represent the condition and visibility of all the signs show as they were photographed on 19/05/2015, which is over two years before the PCN was issued. However, my date-stamped photographs were taken the day after the PCN was issued ([date after PCN issue]) and therefore accurately show the condition and visibility of the signage at the time the PCN was issued.

Page 25 of the evidence pack from CPP contains a “Final Signage Plan” which has empty boxes for ‘Project Surveyor’, ‘Approved by’ and the ‘Date’ [when approved]. This incomplete signage plan fails to prove that the signs have been appropriately created and checked for compliance with BPA:CoP. The signage contains the BPA’s Approved Operator Scheme logos which implies that the BPA:CoP is being complied with, but that cannot be assumed in this case.

Therefore, since the contents of the signage is impossible to read in its entirety in both physical and digital forms, which has been supported by the CPP evidence, I once again request that my appeal is upheld and for POPLA to inform CPP to cancel the Penalty Charge Notice.
Best Regards,

Registered Keeper

Panzellus

Sorry for the late reply as this decision came in a little while ago but regardless, it was successful! Thank you for your help again and I'll post this in the POPLA Decisions thread too.

Decision: Successful
Assessor Name: Louise Dack
Assessor summary of operator case
On 2 November 2017, vehicle [redacted] was issued with a Parking Charge Notice (PCN). This PCN was issued due to the motorist parking in a restricted area.

Assessor summary of your case
The appellant has raised the following grounds of appeal: • They say that 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. They are ‘forbidding parking’ signs which offer no contract a driver can accept • The appellant has not been provided with evidence any contravention took place or that the driver was not an ‘Authorised Visitor’ • The appellant says that they do not believe that the operator has the authority from the landowner to issue PCNs on site. • They say that a compliant Notice to Keeper was never served and as a result, no Keeper Liability can apply. • The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

Assessor supporting rational for decision
When entering private land where parking is permitted, you are entering into a contract with the operator by remaining on this land. The terms and conditions of this land should be displayed around this area. It is essential that these terms are adhered to in order to avoid a PCN; it is the responsibility of the motorist to ensure that this is the case. The terms and conditions shown on the photographic evidence provided by the operator state ‘’Staff permit holders only…Staff must display a valid permit at all times…Failure to comply with the terms and conditions will result in a Parking Charge of: £70.’’ A PCN has been issued for the following reasons: the appellant has parked in a restricted area. Whilst I note that the appellant has raised a number of grounds of appeal, my assessment will focus solely on the operator having authority from the landowner to issue PCNs on site as this supersedes the other grounds. In terms of POPLA appeals, the burden of proof belongs with the operator to demonstrate it has issued the PCN correctly. In this instance, the operator has failed to provide a copy of the contract in place and as a result I am unable to confirm if this contract meets the requirement of the British Parking Association (BPA) Code of Practice section 7. Therefore, in this case, I am unable to confirm that the operator has landowner authority to issue PCN’s on the site in question. As such, I can only conclude that the PCN was issued incorrectly. Accordingly, I must allow this appeal.

The_Deep

Have you seen this


http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41


the wring is on the wall.


Complain to your MP and in writing to your local Trading Standards Deparyment, not CAB who are useless.read