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Popla appeal help
fereljojo
Posts: 4 Newbie
Hi I have done a POPLA appeal but needs a once over & advice on which category to put it in on the POPLA website, all advice would be greatly received. Don' know how to put pics on here or if I can, Not up on computers a proper novice self taught.
Dear POPLA by!
PCN Number:! xxxxx!
POPLA Verification Code: xxxxx!
I write to you as the registered keeper of the vehicle xxx, I wish to appeal the £100 Parking Charge Notice (PCN) issued by ParkingEye Ltd.!
As the keeper of the car I wish to put forward to you that a ticket was purchased for the hour the car was parked in the Mecca Bingo Car Park (fig:1),but due to unclear signage a ticket was purchased from the meter that was nearest to the car (less than 50 meters away) but it turned out this meter was only for cars parked in the Kirklees Council Car Park and not or the adjacent car park belonging to Mecca Bingo. As there is no clear signage to be seen stating that the area is allocated only for Mecca Bingo customers the driver was unaware they had purchased the ticket from the wrong machine.!
!
Fig 1 ticket purchased!
The driver was going to park in Sainsburys car park, but due to the grid locked traffic as England were playing in the world cup that day and the car going into limp home mode they decided to park in what they thought was Kirklees car park. The driver genuinely did not know they had parked in Mecca Bingo Car Park as the last time the driver parked in this car park there was a barrier at the entrance to Mecca Bingo Car Park, but this has gone and with no signs at the entrance they thought it was all Kirklees car park. (fig:2)!
!
Fig: 2 no signs at entrance.!
!Therefore, I submit the reasons below to show that I am not liable for the parking charge:!
!
1. The signs are not prominent, clear or legible !
2. No evidence of Landowner Authority!
3. No Contract was entered into between the Parking Eye and the Driver or Registered keeper.!
!
1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself!
!
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 is not clear and is in small font which makes it impossible to read as you are going into the car park, especially as the signage is on the edge of a mini roundabout. The driver was able to park the car without driving past any of the signs and there is one sign placed at the roundabout as you leave but this does not enable the driver the chance to read this unless they physically get out of the car. The signage is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.!
The BPA Code of Practice states:!
!
"18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about!
the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car!
park is managed and that there are terms and conditions by which they must be aware of."!
!
Furthermore, the postal parking charge notice received, states that 'the signage displayed at the entrance to and through the car park, states that this car park is private land managed by ParkingEye. !
!
There were no informational signs at the entrance of the car park, informing drivers of the required information. Instead there was a plain 'P' sign and an arrow (fig:3), giving no indication of it being a private, paid car park. This makes the parking charge notice factually incorrect, as well as going against BPA guidelines.!
!
Fig: 3 plain P sign on roundabout!
In this respect, I believe ParkingEye to be in breach of the BPA Code of Practice by not providing the required information at the car park entrance.!
!
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[/url]!
!
In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges. !
!
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. As you enter the roundabout, the only signage that can be seen are on the turning of the roundabout and no further signage can be seen if you are parking to the left of the carpark near the entrance. ParkingEye have no signage with full terms which could be read at eye level, for a driver in moving traffic to read on arrival. There were no signs on the poles with the cameras at the entrance (fig: 4) nor near the parking bay the driver parked in. !
!
Fig: 4 no signs at entrance/ exit.!
!
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. !
ParkingEye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park, but this is not clear. As the keeper I made a special visit to the car park to ascertain the positioning and quality of the sign. They are positioned further inside the entrance and would only be visible to the driver if they went right into the car park and parked further along. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead, as the sign is on the entrance to the roundabout the signs are not seen by the driver at all if you turn left into the car park and park where the driver did. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Also because of this visit it is noted that the sign is a forbidding one, so no contract can be made with the driver.!
The only signage in font that is legible is on the edge of the roundabout which has the Pay and Display sign for Mecca Bingo but the arrow points to the right of the car park not to the area behind where the car had been parked. There is no signage making it clear that the car park is split into two with one area being the Council car park and the other being the Mecca Bingo Car Park. The council side of the car park does have signage that states it is the Kirklees Car Park and to use the correct machine and this was visible from the parking bay the car was parked in (fig: 5) but the Mecca Bingo site has no such signs. The Mecca Bingo ticket machine is near the entrance to the Building and cannot be seen from the naked eye at all from where the car had been parked. !
As a POPLA assessor has said previously in an adjudication!
!!!8220; Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear!!!8221;!
!
(fig: 5) sign visible from parking bay.!!
!
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount that Parking Eye is now demanding, rather than simply the nominal amount presumably due in a machine on site.!
!
The alleged breach occurred as there is no clear indication of how the car park is split so that some of the Car Park spaces belongs to Parking Eye whilst most of them belong to the Kirklees council. As you are entering from a mini roundabout there is only one visible sign indicating that the RIGHT of the car park belongs to Mecca Bingo. As the car was parked 3 spaces behind this blue sign there is no clear signage that this part belonged to Mecca Bingo. These are not mitigating circumstances but failure by ParkingEye, plus to ensure that their signs were to be seen accordingly. The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. The signs must be visible by all drivers; these requirements were not met and I demand strict proof that these signs are visible by all drivers and there is clear signage of the section of the Car Park belonging to Parking Eye.!
!
The BPA Code of Practice, Appendix B, under Contrast and illumination:!
!
Furthermore, the landmark case of ParkingEye v Beavis [2015] UKSC 67 establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges. ParkingEye did not provide me with evidence that such signs, if present, were available throughout the car park and visible, from the area where the car was parked at the time of the event.!
Breach of the BPA Code of practice, paragraph 18.2. Terms & Conditions / Entrance signs.!
The BPA Code of Practice, paragraph 18.2 states:!
!
"18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about!
the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car!
park is managed and that there are terms and conditions they must be aware of."!
!
Furthermore, the postal parking charge notice received, states that 'the signage displayed at the entrance to and through the car park, states that this car park is private land managed by ParkingEye. There were no informational signs at the entrance of the car park, informing drivers of the required information. Instead there was a plain 'P' sign and an arrow, giving no indication of it being a private, paid car park. This makes the parking charge notice factually incorrect, as well as going against BPA guidelines.!
!
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. !
!
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:!
.thesignchef.com/sizing_guide.php[/url]!
!
''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''. !
!
''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.'' !
!
So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.!
!
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency': !
!
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent. !
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.!
!
The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.!
!
This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:!
!
[.bailii.org/ew/cases/EWCA/Civ/2000/106.html[/url]!
!
!
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.!
!
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 - 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!
!
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
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 !!!8220;unfair!!!8221; under the Unfair Terms in Consumer Contract Regulations 1999.!
!
Many Thanks!
!
Registered Driver!
Dear POPLA by!
PCN Number:! xxxxx!
POPLA Verification Code: xxxxx!
I write to you as the registered keeper of the vehicle xxx, I wish to appeal the £100 Parking Charge Notice (PCN) issued by ParkingEye Ltd.!
As the keeper of the car I wish to put forward to you that a ticket was purchased for the hour the car was parked in the Mecca Bingo Car Park (fig:1),but due to unclear signage a ticket was purchased from the meter that was nearest to the car (less than 50 meters away) but it turned out this meter was only for cars parked in the Kirklees Council Car Park and not or the adjacent car park belonging to Mecca Bingo. As there is no clear signage to be seen stating that the area is allocated only for Mecca Bingo customers the driver was unaware they had purchased the ticket from the wrong machine.!
!
Fig 1 ticket purchased!
The driver was going to park in Sainsburys car park, but due to the grid locked traffic as England were playing in the world cup that day and the car going into limp home mode they decided to park in what they thought was Kirklees car park. The driver genuinely did not know they had parked in Mecca Bingo Car Park as the last time the driver parked in this car park there was a barrier at the entrance to Mecca Bingo Car Park, but this has gone and with no signs at the entrance they thought it was all Kirklees car park. (fig:2)!
!
Fig: 2 no signs at entrance.!
!Therefore, I submit the reasons below to show that I am not liable for the parking charge:!
!
1. The signs are not prominent, clear or legible !
2. No evidence of Landowner Authority!
3. No Contract was entered into between the Parking Eye and the Driver or Registered keeper.!
!
1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself!
!
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 is not clear and is in small font which makes it impossible to read as you are going into the car park, especially as the signage is on the edge of a mini roundabout. The driver was able to park the car without driving past any of the signs and there is one sign placed at the roundabout as you leave but this does not enable the driver the chance to read this unless they physically get out of the car. The signage is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.!
The BPA Code of Practice states:!
!
"18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about!
the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car!
park is managed and that there are terms and conditions by which they must be aware of."!
!
Furthermore, the postal parking charge notice received, states that 'the signage displayed at the entrance to and through the car park, states that this car park is private land managed by ParkingEye. !
!
There were no informational signs at the entrance of the car park, informing drivers of the required information. Instead there was a plain 'P' sign and an arrow (fig:3), giving no indication of it being a private, paid car park. This makes the parking charge notice factually incorrect, as well as going against BPA guidelines.!
!
Fig: 3 plain P sign on roundabout!
In this respect, I believe ParkingEye to be in breach of the BPA Code of Practice by not providing the required information at the car park entrance.!
!
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[/url]!!
In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges. !
!
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. As you enter the roundabout, the only signage that can be seen are on the turning of the roundabout and no further signage can be seen if you are parking to the left of the carpark near the entrance. ParkingEye have no signage with full terms which could be read at eye level, for a driver in moving traffic to read on arrival. There were no signs on the poles with the cameras at the entrance (fig: 4) nor near the parking bay the driver parked in. !
!
Fig: 4 no signs at entrance/ exit.!
!
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. !
ParkingEye Ltd. state that the terms and conditions of parking are displayed at the entrance to the car park, but this is not clear. As the keeper I made a special visit to the car park to ascertain the positioning and quality of the sign. They are positioned further inside the entrance and would only be visible to the driver if they went right into the car park and parked further along. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead, as the sign is on the entrance to the roundabout the signs are not seen by the driver at all if you turn left into the car park and park where the driver did. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Also because of this visit it is noted that the sign is a forbidding one, so no contract can be made with the driver.!
The only signage in font that is legible is on the edge of the roundabout which has the Pay and Display sign for Mecca Bingo but the arrow points to the right of the car park not to the area behind where the car had been parked. There is no signage making it clear that the car park is split into two with one area being the Council car park and the other being the Mecca Bingo Car Park. The council side of the car park does have signage that states it is the Kirklees Car Park and to use the correct machine and this was visible from the parking bay the car was parked in (fig: 5) but the Mecca Bingo site has no such signs. The Mecca Bingo ticket machine is near the entrance to the Building and cannot be seen from the naked eye at all from where the car had been parked. !
As a POPLA assessor has said previously in an adjudication!
!!!8220; Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear!!!8221;!
!
(fig: 5) sign visible from parking bay.!!
!
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount that Parking Eye is now demanding, rather than simply the nominal amount presumably due in a machine on site.!
!
The alleged breach occurred as there is no clear indication of how the car park is split so that some of the Car Park spaces belongs to Parking Eye whilst most of them belong to the Kirklees council. As you are entering from a mini roundabout there is only one visible sign indicating that the RIGHT of the car park belongs to Mecca Bingo. As the car was parked 3 spaces behind this blue sign there is no clear signage that this part belonged to Mecca Bingo. These are not mitigating circumstances but failure by ParkingEye, plus to ensure that their signs were to be seen accordingly. The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. The signs must be visible by all drivers; these requirements were not met and I demand strict proof that these signs are visible by all drivers and there is clear signage of the section of the Car Park belonging to Parking Eye.!
!
The BPA Code of Practice, Appendix B, under Contrast and illumination:!
!
Furthermore, the landmark case of ParkingEye v Beavis [2015] UKSC 67 establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges. ParkingEye did not provide me with evidence that such signs, if present, were available throughout the car park and visible, from the area where the car was parked at the time of the event.!
Breach of the BPA Code of practice, paragraph 18.2. Terms & Conditions / Entrance signs.!
The BPA Code of Practice, paragraph 18.2 states:!
!
"18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about!
the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car!
park is managed and that there are terms and conditions they must be aware of."!
!
Furthermore, the postal parking charge notice received, states that 'the signage displayed at the entrance to and through the car park, states that this car park is private land managed by ParkingEye. There were no informational signs at the entrance of the car park, informing drivers of the required information. Instead there was a plain 'P' sign and an arrow, giving no indication of it being a private, paid car park. This makes the parking charge notice factually incorrect, as well as going against BPA guidelines.!
!
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.''!
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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. !
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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:!
.thesignchef.com/sizing_guide.php[/url]!
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''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''. !
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''...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.'' !
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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.!
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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': !
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(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.!
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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.!
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This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:!
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[.bailii.org/ew/cases/EWCA/Civ/2000/106.html[/url]!
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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.!
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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.!
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2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice!
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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.!
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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.!
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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).!
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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. !
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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.!
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Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:!
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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.!
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7.3 The written authorisation must also set out:!
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a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined!
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b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation!
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c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement!
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d. who has the responsibility for putting up and maintaining signs!
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e. the definition of the services provided by each party to the agreement!
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3. No Contract was entered into between the Parking Eye and the Driver or Registered keeper!
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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
to them. None of which ever actually happened.!
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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 !!!8220;unfair!!!8221; under the Unfair Terms in Consumer Contract Regulations 1999.!
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Many Thanks!
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Registered Driver!
0
Comments
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That's a failed appeal, unless you change the last word in it to Keeper.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Thank you, is this the only thing I need to change? Would you have any idea which category I appeal to is it 'other'?0
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Yes, as described in post #3 of the NEWBIES FAQ sticky thread:Would you have any idea which category I appeal to is it 'other'?These then get saved as PDFs and uploaded to POPLA under OTHER (ONLY)0 -
A BIG THANK YOU to the MSE team for all the help and info that has won my Popla appeal, couldn't of done it without you !!!!0
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A BIG THANK YOU to the MSE team for all the help and info that has won my Popla appeal, couldn't of done it without you !!!!
Any more detail? Can we see what POPLA said in their adjudication?Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Hi this is the reply from popla Parking Eye Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.0
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