POPLA appeal regarding CEL

waribai

Hi,

I have looked around the forum but would like some specific advice on my circumstances.

My car was parked at Butterfly Walk Camberwell to shop in Morrison. The car park is shared with other shops and require a £2 payment and then you can obtain a refund at the checkout but due to a lack of correct change the driver was unable to obtain a ticket.
I as the registered keeper then received a PCN seven days later from CEL. I appealed against this and included the shopping receipt but they rejected my appeal. I am now at the POPLA stage. Please see my draft below. How does it look?

POPLA Ref <ref>
Civil Enforcement Parking Charge Notice no <ref>

A notice to keeper was issued on <date> and received by me, the registered keeper of <reg> for an alleged contravention of !!!8216;BREACH OF THE TERMS AND CONDITIONS OF USE!!!8217;!!!8217; at <location>. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) Initial appeal refused as a matter of course without any substantive effort to reply

2) Misleading and unclear signage
3) Use of the car park as a consumer
4) No landowner authority nor legal standing to form contracts or charge drivers


1) The initial appeal lodged with Civil Enforcement Ltd on <date> and the appeal response itself appears to be a pro-forma refusal. Were the Civil Enforcement appeal process anything other than a process by which to appear compliant with BPA guidelines then it would acknowledge points of information I provided.

2) The alleged breach, according to Civil Enforcement, is in contravention of terms and conditions clearly displayed at the entrance to and throughout the car park. 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. At time of the alleged contravention, the one single small sign at the entrance could not be read fully and properly without stopping, and it is also possible to park in a bay without coming close to any other sign. Civil Enforcement are required to show evidence to the contrary.

The signs are placed every fourth row and spaced with seven car parking spaces between them. Due to the distance and the orientation of the sign it is therefore possible to park and walk to the store, particularly when parking in the middle two rows and not be able to see any clear signage which complies with BPA requirements. See attached image.




4) There is no landowner authority nor legal standing to form contracts or charge drivers. 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 un-redacted 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 on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d who has the responsibility for putting up and maintaining signs
e the definition of the services provided by each party to the agreement


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

Quentin

You need to remove details of who was driving from your post if you intend never revealing this


And what is 3 about in relation to the keeper/driver??


(The ppcs monitor this forum and can use your posts against you)

waribai

Thanks, I removed those references. Is it good to go?

Quentin

Have you checked out other poplA appeals as listed in the Newbies FAQ?

And what is 3 about in relation to the keeper/driver??

waribai

Ok, I've done a redraft. Thanks for any advice

I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) Initial appeal refused as a matter of course without any substantive effort to reply

2) Misleading and unclear signage

3) No landowner authority nor legal standing to form contracts or charge drivers


1) The initial appeal lodged with Civil Enforcement Ltd on 29TH March and the appeal response itself appears to be a pro-forma refusal. Were the Civil Enforcement appeal process anything other than a process by which to appear compliant with BPA guidelines then it would acknowledge points of information I provided.

2) 2) The alleged breach, according to Civil Enforcement, is in contravention of terms and conditions; clearly displayed at the entrance to and throughout the car park. The signs in this car park are not at all prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. At time of the alleged contravention, the one single small sign at the entrance could not be read fully and properly without stopping, and it is also possible to park in a bay without coming close to any other sign. Civil Enforcement are required to show evidence to the contrary.

The attached picture shows the sign at the entrance where it is not possible to stop if there is other traffic:



The signs in the car park are on exterior walls and are placed every fourth row and spaced with seven car parking spaces between them. Due to the distance and the orientation of the sign it is therefore possible to park and walk to the leisure centre, particularly when parking in the middle two rows and not be able to see any clear signage which complies with BPA requirements. See image below



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:

http://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:

http://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. The wording is mostly illegible as it is so small in size, particularly notice of the actual parking charge itself.

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. On the entrance sign itself there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering, 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, with the text regarding the actual charge being far smaller. 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 and in the case of the charge itself, 0.25 font size, going by this guide:

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

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

http://www.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!!!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:

http://www.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:

http://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.

Separately, I can find no trace of a decided planning application relating to Butterfly Walk for the Civil Enforcement Ltd signage and cameras. The only decided planning applications found relate to signage for the leisure centre. Assuming that indeed no planning application was submitted or approved, then the signs hold no validity even were they properly sized, properly legible and properly placed.

Specifically missing from the signs (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside/at the site boundary. It is not stated that the cameras are not for security but are there in order to calculate 'total stay' for the purpose of generating profit from PCNs.

In fact, any reasonable driver would believe that they are authorised to park and rely on their own timekeeping. In circumstances where the terms of a notice are not negotiable (as with car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity in those terms, the rule of contra proferentem shall apply. This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: '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'.

and Paragraph 69: 'Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.'

The driver could never guess that they are responsible for taking into account a period that is somehow back-timed to include a secret timing when the clock started (unbeknown to drivers) from their arrival in moving traffic from the road. If they are, then this must be transparently stated at the entrance and the machine clocks must be set to start a period of parking from arrival, by linking the systems.

Withholding material information from a consumer regarding the 'time when the clock starts ticking' and the commercial purpose of the ANPR cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

http://www.legislation.gov.uk/uksi/2008/1277/contents/made

Misleading omissions: 6.!!!8212;(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)!!!8212;!
(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''

3) .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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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.

Umkomaas

As you're appealing as the keeper, does the CEL NtK meet the very strict requirements (timescale and wording) of PoFA Schedule 4? If not this is your critical appeal point - a slam dunk winning one.

Do not submit your appeal until you have checked NtK PoFA compliance.

Separately, I can find no trace of a decided planning application relating to Butterfly Walk for the Civil Enforcement Ltd signage and cameras. The only decided planning applications found relate to signage for the leisure centre. Assuming that indeed no planning application was submitted or approved, then the signs hold no validity even were they properly sized, properly legible and properly placed.

This is of no relevance to POPLA. They don't adjudicate on stuff that is the domain of the local authority to oversee. You can leave it in to give the PPC something for them to deal with, but it's not a winning point.

waribai

They meet the timescale but I am not sure about the wording. What should they definitely say/not say?

Also it was ANPR cameras that they used as evidence. Not sure if that makes things different.

Umkomaas

I think in my original online appeal to CEL though I identified the driver

Well that will blow the greatest protection from this scam (Hansard 02/02/18).

What did you say in the appeal?

If you find that the driver wasn't identified, pedantically check the NtK with Schedule 4 of PoFA? It needs to meet the requirements exactly, near enough is not good enough. So go through the paras in Schedule 4 and give special attention if this was an ANPR camera event, para 9.

Quentin

The ppcs monitor this forum and can use your posts against you

Hence the advice to edit your op in #2

But you have still left section 3 in your initial draft and now posted more details about who was driving!

Umkomaas

But you have still left section 3 in your initial draft and now posted more details about who was driving!

Sort it out @OP and I'll adjust the quote in my prior post.

waribai

Ok, all references removed, I hope!