Parking at The Gym

niggle58

I will go down the blabbed POPL route thanks.

Just a point though.

If the cost for parking was free for two hours and I was there 72 minutes, then surely there is no contract at all?.

No fee means no 'consideration'. Without consideration, there is no binding contract.?

That's my feeble understanding of contract law.

Thanks!

niggle

niggle58

From BPA Guidelines:

2.1.2 Elements of a contract:

i) Offer and acceptance

One party (the ‘offeror’) must make a clear and definite offer to enter into an agreement with the other party (the ‘offeree’). When the offer is unconditionally accepted by the offeree a contract is formed at that moment. Up until the point of acceptance there is no contract. See below for examples of offer and acceptance in a parking context.

ii) Consideration
In any contract, there must be ‘consideration’ – something given up by each party in exchange for the benefit they receive. Typically, in a contract, one party receives goods or services in exchange for payment to the other party. The consideration by one party is the handing over of the money for example, and by the other party the handing over of the goods or the carrying out of the services. This can clearly be applied to many parking situations when the driver pays for the right to park for a given period.


2.3.4 What is the consideration in a parking services contract?

The offer to provide a parking space is the key consideration passing from the offeror, that is to say, from the parking services operator.

However, both parties must provide consideration in a contract, not just the offeror. Usually, the offeree's agreement to pay for parking service will be the other half of the bargain.

When no payment is required from the driver, there will be another obligation on the driver that amounts to consideration. This consideration does not have to be in money terms, and in some cases could be quite a minor duty on the driver. It is arguable, for example that the obligation to stick a timed ticket inside their windscreen could be interpreted as the driver’s consideration, even without them having had to pay for the ticket. In a retail park where use of the car park is free to customers, the driver’s consideration is their promise to ‘be a customer’ and that they will do this by entering retail premises of one of the park’s retailers in exchange for being allowed to park.

It could also be argued that in a retail park or supermarket where there is a maximum stay time, the consideration could be the Charge Notice that the driver agrees to pay if they stay for longer than the maximum period.

I don't think this would stand up in a court of law as there is no consideration.

niggle58

I didn't overstay the time allowance so Beavis Vs Parkingeye doesn't apply. By breaching the contract if there was indeed a contract I am only obliged to put Smart Parking in the position they would have been in had I not done so. Which in my case as the two hours were free is zero.

I would have had to overstay, which I didn't for any 'penalty' to apply.

parkingcowboys.co.uk/parkingeye-vs-beavis/

On reading this they can't apply a penalty to a free 2 hour situation like mine.

Coupon-mad

I have been going to the same gym for 9 years. they recently changed their machines

So, if this was a recent change, maybe the error was with the machine's keypad or back office system? Why in your appeal did you assume it was you making a typo? I would switch that position for POPLA and have an introductory point, saying that Smart have new machines which are playing up, and that their rejection letter didn't even tell you what the 'error' was and far from being a typo you put Smart to strict proof of the entry made at that time, that matches or closely matches one or other of your family cars.

At least then you will see what the issue was (not that you will be paying!).

I don't think this would stand up in a court of law as there is no consideration.

Smart don't sue anyone so it's unlikely to be tested. If people lose at POPLA we just tell them to ignore anything except a proper Letter Before Claim, or actual court claim.

Also, as they recently changed their machines (and signs?) is this is new enforcement regime by Smart that didn't exist before 2018? If it is new, also have a POPLA point that the BPA CoP says that new regulations require additional signage to communicate the 'parking charge' £100 risk to patrons who have used a site for many years.

Then add the usual template POPLA points about unclear signs, no landowner authority, breach of the ICO CoP re ANPR use 24/7, and no 'legitimate interest', unlike in the Beavis case, so this charge is not similarly saved for being a penalty.

they can't apply a penalty to a free 2 hour situation like mine.

You are preaching to the converted. We agree with you, we know about the Beavis case (some of us are in touch with Barry Beavis now, and others who post here actually helped with his case), but POPLA won't find on that basis, they need simpler stuff even though as I said above, I would still include 'no legitimate interest'/not similar to the Beavis case.

niggle58

Great stuff thank you!

niggle58

How about this?

Dear sirs,

I am writing to appeal the above invoice from Smart Parking who operate the car park at Goose Green in Altrincham.

Note:
1. Faulty new machines

Smart recently introduced new machines which were installed in the gym which have been playing up. Smart’s rejection of my first letter did not explain what their error was, and I request that Smart provide proof of the entry that they relied on at the time on which they base their rejection.

2. Frequent jamming

The machines frequently jam despite people trying to follow the instructions so I am not surprised that they created an error at the time or that such an error was transported to Smart’s back office systems.

3. These new machines did not exist before 2018.

The new machines were only been introduced in the last few months. As such there must be additional signage explaining the new regime. This is contrary to the BPA code of practice. Especially to patrons who have been members of the gym for a very long time.

4. Additional time is required.

Smart must allow additional time to patrons. It is widely known that queues have been known to form in front of the two machines in the gym lasting for upwards of 15 minutes as regular patrons struggle to interpret these illegible and unfathomable instructions.


5. Inadequate instructions

The new faulty machines cause endless queues inside the gym with the instructions on how to use them in tiny lettering stuck to the top of the machine.

Anyone who does not have 20/20 vision struggles to follow these instructions as they in such small type. The instructions themselves which are in place are completely inadequate and unfathomable and contrary the BPA code of practice on appropriate signage.

BPA COP 2015
“Signs must be conspicuous and legible, and written in intelligible language so that they are easy to see, read and understand.”

Once one has managed to find the instructions to work the machine the steps are endless. In fact in order to get a ticket one has to press a minimum of 9 different buttons in a minimum sequence of 13 button presses. This whole process is not intelligible. It is unnecessary and unreasonable. (see photograph of the machine)

Signage to introduce these new machines must be placed not only next to the machines themselves but in plain sign around the car park, clearly visible from every space and Smart's failure to do so is contrary to the BPA code of practice.

Once the little signage that is available has been missed there are no visible terms and conditions in the foyer at the gym, nothing at all. Only once you enter the gym itself is there a small sign stating what to do. It is perfectly possible to completely miss this tiny sign, with small writing altogether.

if Smart only show POPLA photos of the signs OUTSIDE, this will not be sufficient to disprove this appeal point.


6. No adequate signage

There was no adequate signage in the car park on the route from the car park up to gym level to explain that the car park had installed new machines and how to use them.

In addition, 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 and penalties.

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

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

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

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition, the operator’s 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. 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:
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' 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:
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.

7. Specifically - Term & Conditions

Further to point 7 for a contract to be formed full terms and conditions of the offer must be visible at the point of entry to your car park. They are not. In fact, one must become something of a detective to find them at all.

I have since visited the car park and managed to find them on one far wall. In fact, it is perfectly possible to visit the car park without seeing any terms at all such is the poor signage in the car park itself. (See photograph)

The term s& conditions are in tiny type and in the dingy car park, it is just not possible to read them. Not unless you are an owl.

8. Time entering the car park is not enforceable.

since there is no clock on the wall at the entrance of the car park. The driver, therefore, has no idea what time he entered the car park. You can not rely on this time as the basis for sending a driver an invoice for parking as the driver has no way of knowing what time and exactly at what point he entered the car park.
9. There is no proof that the driver’s car entered the car park.

You have a photograph showing the car at the entrance to the car park and another one at the exit to the car park. Either of those photographs could be explained by the driver ‘picking up’ by reversing into the entrance of the car park in order to turn round. This evidence is at best circumstantial as you have no photograph or any evidence whatsoever that the car actually entered the car park.

10. 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 a 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:

10.2 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.

10.3 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








What do you think?

I think the fact the machines were new opens up a whole can of worms for them. Please let me know what you think about the first sections. Should I make them longer?

Thank you!

KeithP

What is point 12. doing there?

They have no need to prove who the driver is - you have already told them.
That's why you, as the driver, have you own PoPLA code.

The whole of 12 needs deleting.

Coupon-mad

#4 and #5 should be straight after #1.

And you have several points about unclear signs, dotted around with other points between them. Group similar subject matter together.

niggle58

I have re-edited the appeal and taken out the bit about identifying the driver. I didn't actually say I was driving though that's why I put it in. I said 'my car was parked while I was at the gym'.

Do you think this is adequate now?

Regards

niggle58

Coupon-mad

You have made up some points that have no legs, such as here:

8. No Contract

The BPA COP 2015 allow for you to recover parking charges for alleged breach of ‘contract’. Yet there is no contract as the parking charge for two hours parking is zero.

9. Parking at this is car park is free for two hours.

The BPA COP 2015 state that Smart may recover ‘parking charges’ in the case of the non-existent breach of contract. Since there are no parking charges for the two-hour stay then the parking charges recoverable are zero.

#13 is in the wrong place and should be amalgamated with #5, and you should add a sentence stating that, if Smart only show POPLA photos of the signs OUTSIDE, this will not be sufficient to disprove this appeal point.

Can you go over there now and get a photo of that tiny inside sign (NOT close up, I mean a really bad photo or two, to support your appeal as evidence?). Otherwise POPLA might disregard what is a valid point, as you haven't proved it.

Typos below:

4. Additional time is required.

Smart must allow additional time to patrons. It is widely known that queues have been known to form in front of teh two machines in teh gym lasting for upwards of 15 minutes as regular patrons struggle to interpret these illegible and unfathomable instructions.