CP Plus PCN appeal rejected. Is it worth appealing to PAOLA and how?

[Deleted User]

Hello everyone who kindly help me in my case. I do appologise for not getting back so quick, but I am mother of 3 year old who been off sick for the last few weeks (nightmare).
You are right The Deep a lot of reading and no time for it.
Thank you Quentin, I really appriciate every comment. Witout that forum I would just have to pay with the money that I don't have.
The below is what I am planning to send to POPLA. I was wandering if to make the point about the no signage on the entrance to site, as well as non on the car park the car was parked as I main and first point as this was really the issue or leave it as it is? The sign with terms and conditions was a long distance from where the car was parked and it wasn't seen by the driver at all.
Ps. can I add some pictures to show you the pictures?

POPLA Ref ...................
CP Plus Parking PCN no .......................

A notice to keeper was issued on 8th October 2017 and received by me, the registered keeper of ........ on 18th November 2017 for an alleged contravention of ‘NOT PARKED IN DESIGNED PARKING SPACE’’ at Giltbrook Shopping Park, Nottingham. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

The signs in this car park are not prominent (not placed at the entrance to the site, and there are not
enough signs placed in other locations throughout the site), 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:

link1

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:

link2

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

link3

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

link4

''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:

link5

''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:

link6

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.

The alleged contravention, according to CP Plus, is in 'The signage on site is sufficient and is in line with the guidelines laid down by the British Parking Association (BPA).The majority of motorists who park at the site do so without receiving a PCN. This is undoubtedly due to the fact that they are aware of the terms and conditions of the site. If, as you claim, the signage was inadequate, the terms and conditions of the site would be unknown to the majority of drivers and many more PCNs would be issued here.'
It would however appear that signage at this location do not comply with road traffic regulations or their permitted variations and as such are misleading - they are unable to be seen by a driver and certainly are not placed at the entrance nor the whole area to the site of the carpark between Dacatlon and Ikea stores at Giltbrook Shopping Park, where the car was parked. The driver was not given the chance to be aware of the risk involved at the time of parking or leaving the vehicle and therefore the signage do not comply with the BPA code of practice.

B4.2 'Signs must show, in plain and intelligible language, all the terms on which an operator may wish to rely. Signs must be placed at the entrance to the site, and there must be enough signs placed in other locations throughout the site so that drivers are given the chance to be aware of the risk involved at the time of parking or leaving the vehicle.'
CP Plus are required to show evidence to the contrary.



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,

I therefore request that POPLA uphold my appeal and cancel this PCN.

[Deleted User]

Is this all right to send to POPLA? I wanted to add some photos but not sure how I can do it as a new user? The photos clearly show there is no signage all around the area where the car was parked, nor the entrance to this carpark site.

Could anyone help PLEASE?

I only have time to send it by Wednesday or pay the fee and don't know what to do. Would be very grateful for your comment.

[Deleted User]

Quentin wrote: »

Don't send it until you have put it up here for comments

Hi, any comments to my previous post? Please, I need help

[Deleted User]

Coupon-mad wrote: »

As this must have been a windscreen PCN, we hope that you followed the NEWBIES advice to wait till day 26, so by now, having finally got this rejection letter, you are now almost certainly already well over halfway to day 56, with no NTK.

You WILL win at POPLA on that basis, of course, but include the extra words

...just to make sure.

And don't do the POPLA appeal until day 55/56 (from the parking event) as long as the POPLA code doesn't expire sooner!

Any chance for your comment, please!?

[Deleted User]

Fruitcake wrote: »

You should edit your first post immediately to remove information about who did what, assuming you didn't reveal the driver's identity in your first appeal.

Only ever refer to The Driver and The Keeper, who are two different people.

If you have a PoPLA code, then use it.

Use all the template appeal points available to you from post 3 of the NEWBIES thread.

These should include, not the landowner, no standing to issue charges in their own name, non POFA compliant NTK (you will have to show where it fails to comply with the POFA 2012), inadequate signage, £120 exceeds the maximum amount allowed by the BPA CoP, and anything else you can find.

Can I ask you for your comment on my appeal please?

waamo

CP Plus rarely send POFA compliant paperwork. Unless I’m missing it you could do with a paragraph challanging POFA compliance.

[Deleted User]

Hi all,

I have sent the above appeal and CP come back with the evidence pack where they give some photo evidence which only shows how far the signs are on this car park and can not prove that there is any signage available on the site that the car was parked as there isn't over the whole area. No signs visible from that parking spaces. They only say that the driver would have passed several signs when entering the car park
"Entrance to the site !!!8211; The driver would have driven past several signs
throughout the car park before parking in a small section at the back of the
car park, please note that these entrances to the site are the only way drivers
can gain access"
The only signs that are available on the entrance are the ones saying
"Please see signs in the car park for the details" - which the driver did not have a chance to see from where the car was parked.
Another thing is the contract with the landowner. They provided only one page - Signed Land Owner Agreement between British Land and CP Plus Ltd. It's only signatures and it don't even show the date that it was signed nor other details of the agreement I asked to see.
Can anyone help me to put some comments together, please?

[Deleted User]

This is one of their photos. I will upload some more. I would be very grateful if anyone could have a look at them and your feedback will be much appreciated.

[Deleted User]

https://imagizer.imageshack.com/v2/320xq90/r/923/jKKCSh.png

https://imagizer.imageshack.com/v2/320xq90/r/923/l1KOtn.png

Coupon-mad

Last month I told you to include the extra words, and gave you them:

https://forums.moneysavingexpert.com/discussion/comment/73663884#Comment_73663884

After point #3, add the usual template that the appellant has not been shown to the the individual 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 valid Notice to Keeper. This will continue to be stated in appeals until all POPLA Assessors get this simple matter right.

And waamo added, surprised that you had not said a word about 'POFA/no keeper liability':

CP Plus rarely send POFA compliant paperwork. Unless I'm missing it you could do with a paragraph challanging POFA compliance.

So, what paragraphs did you add about no keeper liability, and the words I showed you and the template wording mentioned in the link I gave you a month ago 'the individual has not been shown to be the individual liable'?

Hoping you have not come this far without mentioning the POFA/keeper liability as an appeal point at all, despite being shown the words, given a link and reminded by waamo.

Please show us what your final draft appeal said about the POFA?

Did you ever get sent a NTK?