POPLA Appeal Review Please

acarty

Hi All,

I received a PCN from Civil Enforcement Ltd for suspected non payment in a car park in Warrington. I had used the car park entrance to make a legal three point turn twice in 3 hours and the ANPR subsequently recorded the front and rear of my car, thinking I had parked in a bay and not paid.

I submitted an appeal to CEL which was unsuccessful so now I am intending to appeal with POPLA. I have read the newbies section and post #3 in particular which is brilliant, but I am not sure if my case is a little different with me not having parked in the car park? I have seen how some appeals are over 20 pages long but not sure on what other grounds I should appeal based on the fact I didn't park in the car park? I have put a draft copy of my appeal below; any comments would be much appreciated. I asked for CCTV evidence of me parking in the car park but the letter I received back telling my the appeal was unsuccessful did not mention this and seemed fairly standard. Also the first appeal I said I had drove, I now see most don't specifically state the driver?

Thanks in advance


Parking Charge Notice Appeal on XX/XX/XXXX, PCN No. XXXXXXXX
POPLA Verification Code: XXXXXX
Vehicle Registration: XXXXXXX

I, the registered keeper of this vehicle, am writing to appeal the parking charge notice (PCN) that I was issued on XX/XX/XXXX due to suspected non-payment in the car park at Postern Gate, St Austin Lane, Warrington, WA1 1HE. My initial appeal to the operator, Civil Enforcement Ltd, was submitted on XX/XX/XXXX and rejected via a letter dated XX/XX/XXXX.

At 19:27, I drove down Cairo Street (in the direction of St Austins Lane) and turned into the entrance of the car park with the intention of finding a space. As I drove into the entrance of the car park, I noticed a vacant parking space on Cairo Street, which is situated perpendicular to the car park entrance. I then proceeded to reverse out of the car park entrance (reversing towards St Austins Lane) and then drove forwards into this vacant space on Cario Street from the entrance of the car park. Please note, there is no cost to park on Cairo Street any time after 6.30pm Monday-Friday. Figure 1 shows the layout of the car park in relation to Cairo Street and the position in which I parked on the road.

Upon my return to the car 1 hour 50 minutes later, I reversed out of the space on which I was parked on Cairo Street and used the entrance of the car park to make a legal two point turn in the road. I reversed into the car park entrance and then drove forwards out of the entrance onto Cairo Street, heading towards St Austins Lane. I then continued my journey home. Figure 2, 3, 4 and 5 confirm my vehicle movements.

Having received the PCN from Civil Enforcement Ltd, I can only assume that the ANPR cameras have recorded my vehicle entering the car park at 19:27 (where I then reversed out onto the road) and leaving my parking space on Cairo Street at 21:17 (where I used the car park entrance to make a legal two point turn).

I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds.

The terms and conditions on the car park signage state (see Figure 6):

"If you (a) park for longer than the period paid for; or (b) do not pay within 10 minutes of arrival; or (c) do not enter your full, exact registration number when making your payment, you agree to pay the standard fee of £100 per day to Civil Enforcement Ltd."

Since I did not park in the car park and left within the 10 minutes stated in the terms and conditions, I did not agree with the £100 per day enforcement charge.

I noticed that the car park contains CCTV cameras in addition to ANPR cameras installed to capture the car park entrance. I requested for Civil Enforcement Ltd to review the CCTV footage on 05/07/2018 between 19:27 and 21:17, however I did not receive a response in their letter advising that the PCN appeal had been unsuccessful.

Ralph-y

while you await comment .... do you have a smart phone ?


do you use google maps or other similar ?


is so if history / tracking is on it will prove your time line ......




Ralph:cool:

Coupon-mad

Can we ban the '' 'I' followed by comma'' grammatical atrocity, please?

I know this wasn't you and comes from someone else, but why do we keep seeing it copied as if this is normal English?

I,

And you should indeed be using the 12 - 20 page templates you see here. Not your own version which is far more likely to lose. You say very little there that can win.

Did you admit to who was driving in your first appeal then (ouch, 100% winning point in the drain, if so)?

acarty

Ralph-y wrote: »

while you await comment .... do you have a smart phone ?


do you use google maps or other similar ?


is so if history / tracking is on it will prove your time line ......




Ralph:cool:

Good idea Ralph, I will have a look at this later on and see if it has tracked my movements on the day.

Coupon-mad wrote: »

Can we ban the '' 'I' followed by comma'' grammatical atrocity, please?

I know this wasn't you and comes from someone else, but why do we keep seeing it copied as if this is normal English?



And you should indeed be using the 12 - 20 page templates you see here. Not your own version which is far more likely to lose. You say very little there that can win.

Did you admit to who was driving in your first appeal then (ouch, 100% winning point in the drain, if so)?

Your are right, I will lose the commas immediately. I will have another go and follow the templates on here more closely. I was just unsure of on what grounds I would be appealing since many of the points in the examples refer to poor signage etc. whereas I didn't park in the car park. What other points should I be raising?


I did say 'I' as the driver as I was happy to admit that I drove into the car park entrance and turned around, however I now understand that this is not the recommended advice.


I would of hoped that they would review their CCTV footage, see me turn around without parking in any space and cancel the PCN? Maybe I was mistaken!

Coupon-mad

If you make the appeal long enough CEL will give up, but you would have won with one email had you come here earlier, no need even for POPLA if a keeper appeals to CEL using he forum template.

Next time!

acarty

Coupon-mad wrote: »

If you make the appeal long enough CEL will give up, but you would have won with one email had you come here earlier, no need even for POPLA if a keeper appeals to CEL using he forum template.

Next time!

Fair enough, thanks. I will draft a new appeal and repost if that's OK.

The_Deep

They are calling you a liar. If this went in front of a judge, who do you think he/she would believe, your good-self, a fine upstanding citizen, or a lying cheating ex clamper.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

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 House of Commons recently

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

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

KeithP

acarty wrote: »

I would of hoped that they would review their CCTV footage, see me turn around without parking in any space and cancel the PCN? Maybe I was mistaken!

Why would they do that?

No profit in accepting appeals.

You seem to think you are dealing with a normal company that might like to help their patrons avoid unnecessary expense.

Oh... and there is no CCTV.

acarty

KeithP wrote: »

Why would they do that?

No profit in accepting appeals.

You seem to think you are dealing with a normal company that might like to help their patrons avoid unnecessary expense.

Oh... and there is no CCTV.

Understood Keith, that's my naivety. There are three CCTV cameras located on the same mast as the two ANPR cameras infront of the car park entrance?

Redx

wont be licensed to be viewed by the PPC, only the store or premises

forget about CCTV, concentrate on the usual appeal points

NO LANDOWNER CONTRACT
POOR AND INADEQUATE SIGNAGE
ANY POFA2012 ERRORS
ANY NTK ERRORS
ANY BPA COP ERRORS

etc


you are trying to get them to prove the validity of their invoice, or fail to win the argument

acarty

Please could you review this if you have time. I have included all points which I feel are relevant in respect to my case. Point 8 particularly applies where I have mentioned the flawed ANPR system in 'drive in, drive out' events.


Thanks in advance.




POPLA Parking Charge Notice Appeal


Civil Enforcement Ltd PCN No. XXXXXXXX
POPLA Verification Code: XXXXXXX
Vehicle Registration: XXXXXXX


A PCN was issued on XX/XX/XXXX and was received in the post by myself (who is the registered keeper of the vehicle) for the alleged contravention of non-payment in the car park at Postern Gate, St Austin Lane, Warrington, WA1 1HE. My initial appeal to the operator, Civil Enforcement Ltd, was submitted on XX/XX/XXXX and rejected via a letter dated XX/XX/XXXX. I am writing to you as the registered keeper of the vehicle and would like you to please consider my appeal based on the following:

• No landowner contract nor legal standing to form contracts or charge drivers
• Inadequate and unclear signage
• No grace period given (Clause #13 BPA Code of Practice)
• Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach
• No Evidence of Period Parked !!!8211; NtK does not meet PoFA 2012 requirements
• No Vehicle Images contained in PCN: BPA Code of Practice
• No Planning Permission from Warrington Borough Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage
• The ANPR System is Neither Reliable nor Accurate

1. I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give Civil Enforcement Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Civil Enforcement Ltd's lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require Civil Enforcement Ltd to demonstrate their legal ownership of the land to POPLA.


I contend that Civil Enforcement Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.


I believe there is no contract with the landowner/occupier that entitles Civil Enforcement Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Civil Enforcement Ltd to prove otherwise so I require that Civil Enforcement Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Civil Enforcement Ltd and the owner/occupier, containing nothing that Civil Enforcement Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.


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




2. I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.


Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £100, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.


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:
LINK
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

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 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:
LINK


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


''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:
LINK

''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:
LINK
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.




3. As per section 13 of the BPA Code of Practice - !!!8216;You should allow the driver a reasonable !!!8216;grace period!!!8217; in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action.!!!8217; The time the vehicle was allegedly parked, as indicated in the PCN supplied by Civil Enforcement, is no more than 20 seconds.


Given the above points of ambiguous signage, including mixed fonts and images, it is unreasonable to expect a driver to be able to read the entire signage whilst driving. Therefore, if a driver stops for a brief moment to read a sign, they MUST have the opportunity to leave and not accept the terms of an alleged !!!8216;contract!!!8217;. 20 seconds I would argue does not breach a fair !!!8216;grace period!!!8217;, and therefore APCOA are in breach of the BPA Code of Practice.


For this appeal, I put Civil Enforcement Ltd to strict proof of where the car was parked and 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.