PCN - Appeal Rejected. Couple Q's

Coupon-mad

Looks good so far.

I think this image is vital, being the only one not addressed only to 'Hotel Guests':

https://imgur.com/iEqJ26Z

It doesn't tell those non-guests about any parking charge, at all. Nada, nothing, not a penny.

Nor does it explain how the ANPR images will be used. So non-Hotel Guests cannot be held to any contract whatsoever, top pay any sum at all, because the other signs are only contracts clearly addressed to 'Hotel Guests' to read. Any reasonable person would not be aware that they were somehow expected to read terms not addressed to them.

RiotLightbulb

Hello again guys. So for the last couple of days i have been slowly working on my POPLA appeal while suffering with a horrible cold

Anyway... using the amazing advice and template here on the forums this is what i have come up with so far:

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Dear POPLA,

PCN Number: xxx
POPLA Verification Code: xxx

I write to you as the registered keeper of the vehicle xxxx, I wish to appeal the £60/£100 Parking Charge Notice (PCN) issued by ParkingEye Ltd. I submit the reasons below to show that I am not liable for the parking charge

1) The signs in this car park are not prominent, clear or legible from all parking spaces, deliberately misleading, inappropriately positioned and there is insufficient notice of the sum of the parking charge itself
2) Breach of the BPA Code of Practice on ANPR !!!8211; DPA and CPUTRs breach.
3) No Contract was entered into between the Parking Eye and the Driver or Registered keeper
4) No evidence of landowner authority


1. The signs in this car park are not prominent, clear or legible from all parking spaces, deliberately misleading, inappropriately positioned 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:

//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:

(LINK REMOVED)

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). Here a Sign has no mention of a parking charge situated at XXXXXX Services:

//imgur.com/iEqJ26Z

Signs are also deliberately misleading, by having the most prominent lettering marked 'Hotel Guests'. Drivers who read such signs who are not hotel guests will dismiss it as not being relevant to themselves:

//imgur.com/XbGlbBi

This case also points out the positioning of the Signs to be unsuitable to read while driving.
Cars departing from the roundabout to enter the Services are in the right-hand lane. While taking a sharp bend to the left the driver is presented with route options by way of road markings and a manoeuvre must be made to select the correct lane to the car park.

//imgur.com/vTpgQM7

As any safe driver will know changing lanes requires use of mirrors, checking of blind spot, signalling, and manoeuvring.
With the road bending around to the left sharply close observation is required in the drivers mirrors and blind spot to ensure no collision with other traffic. It is during this time that the entrance signs are displayed. I argue here that these signs have been deliberately placed when drivers are distracted with making the manoeuvre to increase the chances that the driver does not see the signs.

Additionally the Parking sign is positioned to the right of the road as the road itself bends to the left. Drivers will be looking down the road ahead to the left and not to the right. Again suggesting that the signs are deliberately positioned out of a drivers natural viewing angle.

I support this argument by evidence of the following straight piece of road that follows that could be used to display the parking notices but does not. The only signs along the straight piece of road informs drivers of heavy goods vehicles not to park in the main car park.

//imgur.com/0ed00sn

Before entering the car park the driver has to; Navigate a bend; Choose a lane; And be aware of the forthcoming hazards of entering a car park such as pedestrians and children walking out between cars. Again I argue that the signs have been positioned so as not to be seen the driver who is pre-occupied with the tasks above.
Additionally the driver is making a turn to the right and looking right and the signs have been positioned to the left-hand side. As mentioned previously with signs being positioned on bends they have been purposely situated out of a drivers natural viewing angle as they navigate the road.

//imgur.com/ZELT6lM

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:

(LINK REMOVED)

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

(LINK REMOVED)

''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!!!8221; 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!!!8221; or even larger.''

And the same chart is reproduced here:

(LINK REMOVED)

''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:

//www. 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.

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.

And any stock photographs ''here's what we say the sign would have said'' and/or aerial picture 'diagrams' with unproven flags or dots added electronically at the whim of an unnamed person on a PC on a random date and with no evidential signature/proof that the person is even familiar with the location, site or signs, will be worthless.

I put the operator to strict proof of signage positions and true dates of photographs allegedly taken on site. Failing to show the photographs were taken where and when the operators tries to say they were (e.g. no landmarks or embedded dates or metadata that cannot be altered) will also mean that POPLA will not be able to conclude that the PCN was issued correctly.

Operators often provide a series of photographs from the site but date and time stamps do in some cases, appear to have been added after the photographs have been taken. I am disadvantaged by having to write this appeal before such evidence has been put forward, but I suggest such photographs should be scrutinised and - if not shown to have been in place and prominently proclaiming the 'parking charge' sum in large letters on the day - rejected accordingly. If the Assessor is at all uncertain that the full terms on signage were clear and in place near the car, and at the entrance, on the day of the event, POPLA will not be able to conclude that the PCN was issued correctly.

2. Breach of the BPA Code of Practice on ANPR !!!8211; DPA and CPUTRs breach.

It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR. The signs fail to inform a driver what the ANPR data will be used for, which is a misleading omission in consumer law and a Data Protection breach.
Again I provide a photograph from Gordano Services that shows the signs fail to clearly stipulate that charges will be incurred.

//imgur.com/iEqJ26Z

The driver had no idea that secret camera data would later be used against him to bind him to a charge he knew nothing about and did not agree to. The driver believed any cameras were there for security at the Services.
Signs with the charge displayed are titled with 'Hotel Guests' which would infer to the driver that the charge displayed on that sign would not apply as only a customer to the services.

//imgur.com/XbGlbBi

Failure to tell a driver how the data will be used is a misleading omission of a material fact prohibited by The Consumer Protection from Unfair Trading Regulations 2008:

(LINK REMOVED)

Prohibition of unfair commercial practices:
(1) Unfair commercial practices are prohibited.
(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(4) A commercial practice is unfair if!!!8212;
(a) it is a misleading action under the provisions of regulation 5;
(b) it is a misleading omission under the provisions of regulation 6

I have shown that ParkingEye have failed the above tests by:

- installing cameras without information and warnings about the commercial purpose of the data collection;
- beginning a new enforcement/ticketing regime without extra signs to tell local drivers who may reasonably expect the old regime to be continuing;
- beginning a new enforcement/ticketing regime without Advertising/Planning Consent;

All of the above are misleading actions; and misleading omissions of material facts, a series of commercial practices which are unconscionable and unfair. Even a BPA breach (and certainly DPA and Planning Consent breaches) render a charge under these circumstances prohibited, unrecoverable and therefore, not properly given:

(LINK REMOVED)

(3) A commercial practice satisfies the conditions of this paragraph if it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if
(i) the trader indicates in a commercial practice that he is bound by that code of conduct, and
(ii) the commitment is firm and capable of being verified and is not aspirational, and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances.

3. No Contract was entered into between the Parking Eye and the Driver or Registered keeper

Although I was not the driver of the event, I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. ParkingEye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into why the signs are positioned in such a way that the driver is expected to fully see, read, comprehend, and agree to a contract whilst navigating a bend in the road and changing lanes.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed unfair under the Unfair Terms in Consumer Contract Regulations 1999.

4. 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 Code of Practice – 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

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-Links edited so i can post. (Really wish it would highlight which 'link' i am not allowed to post. Its so annoying when you just want to preview a message and it tells you you can not post link, but you think you removed them all.)
(God damn, why must this message box be so small!)

-Service name removed for anonymity

Feedback welcome. Im not sure if there is any other points i need to argue. I think these are all that apply to me.

Complaint sent to land owner but yet to have a responce so assuming it has been ignored.

Thanks in advance.

The_Deep

[FONT=Times New Roman, serif]This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences. [/FONT]

[FONT=Times New Roman, serif]Parking Eye, Smart and a smaller company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (who take hundreds of these cases to court, and nearly always lose), who have also been reported to the regulatory authority. [/FONT]

[FONT=Times New Roman, serif]The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.[/FONT]

[FONT=Times New Roman, serif]http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41[/FONT]

[FONT=Times New Roman, serif]and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.[/FONT]

Coupon-mad

Remove or edit this, as the UTCCRs no longer exist, replaced by the Consumer Rights Act 2015:

If they are not met then the contract would be deemed unfair under the Unfair Terms in Consumer Contract Regulations 1999.

And the more I look at your photos the more I thought that it's impossible for the driver to learn about who is offering a contract to who (if they are). Not only are some signs only written for 'Hotel Guests' to read, and most do not even mention £100 charge, but none of them tell a non-Hotel Guest driver, who is supposedly offering anything. It looks like a red & white sign from the Hotel to their guests, where is the creditor's name, where is ''ParkingEye'' showing in letters that could tell a driver in their seat behind the wheel on arrival, that the land is managed and who by?

Entrance signs?

No big blue on white 'P' sign to tell drivers that the land is managed, as the BPA CoP requires?

Add that in too.

RiotLightbulb

Thanks for looking it over. Quote removed.

Is there something similar to the Unfair Terms in the Consumer Rights Act that can help perhaps? - I will try and see if there is but if anyone knows.

Also lets just say the signs i have highlighted help my case. I will add the details mentioning that there is no ParkingEye on the signs, but the other points. maybe not so.

Hope you understand the above.

Thanks again. Will do another draft soon.

KeithP

RiotLightbulb wrote: »

Is there something similar to the Unfair Terms in the Consumer Rights Act that can help perhaps? - I will try and see if there is but if anyone knows.

The Unfair Terms in Consumer Contracts Regulations 1999 were revoked with the implementation of The Consumer Rights Act 2015 on 01 October 2015.
In particular, they were replaced by Part 2 of The Consumer Rights Act 2015.

Coupon-mad

Is there something similar to the Unfair Terms in the Consumer Rights Act that can help perhaps? - I will try and see if there is but if anyone knows.

I told you which Act replaced it! Yes the CRA incorporated that wording and improved it.

RiotLightbulb

Coupon-mad wrote: »

I told you which Act replaced it! Yes the CRA incorporated that wording and improved it.

Oh right sorry. Miunderstanding on my part. I was under the impression that the Unfair Terms part was removed/renamed when the old act got replaced.
I see thanks to Keiths link that it is still called the same thing, just now in CRA.

Anyway i have some good news!!

I got a letter saying my parking charge has been canceled!

Having not heard back from WelcomeBreak after submitting a complaint on their 'Contact us' page of their site i thought they had just ignored me. But i was in shock when i opened the letter!

So another success for complaining.

The work on the POPLA may not be in vain either as my sister is also fighting a ticket so what i have written will be used to help her should her complaint fail.

Many many tanks to all of you who dedicate lots of time on this forum with what must be an endless amount of people needing help with tickets. Having friendly helpful people to guide you though such events is invaluable.

(I will let you know how my sister gets on with her situation)

Regards

Riot.