Highview

Roosterrs

Part 2.

5: No evidence of Period Parked – NtK does not meet PoFA 2012 requirements.

Highview Parking Ltd’s Notice to Keeper states:
“The vehicle was recorded on our clients property at Sol Central NN1 1SR from xx/xx/xxxx xx:xx to xx/xx/xxxx xx:xx.”
These times do not equate to any single evidenced “period of parking”.
.
By Highview Parking Ltd’s own admission on their NtK, these times are claimed to be the “In” and “Out” time of the vehicle recorded by the ANPR system.
There is no evidence of a single “period of parking” and this cannot reasonably be assumed. Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states;
“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”
By virtue of the nature of the ANPR system recording only the entry and exit times, Highview Parking Ltd are not able to definitively state the period of parking.
I require Highview Parking Ltd to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.

6: The ANPR System is Neither Reliable nor Accurate

Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order.
I require Highview Parking Ltd to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked,
calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.
As ‘grace periods’ (specifically the time taken to locate any signs, observe the signs, comprehend the terms and conditions, decide whether or not to purchase
a ticket and either pay or leave) are of significant importance in this case(it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle allegedly entering and leaving the car park at specific times (x hours and x minutes apart), it is vital that Highview Parking Ltd produces the evidence requested in the previous paragraph.

7: Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

The BPA Code Of Practice point 20.5a stipulates that:
“When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.”

The PCN in question contains two close-up images of the vehicle number plate. Neither of these images contains a date and time stamp “on the photograph”.
The images have also been cropped to only display the number plate. As these are not the original images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these to the location stated. The PCN also shows two pictures of the vehicle in question. One of these pictures does not clearly show the registration mark of the vehicle.
The key point here is that the photographs must show that a vehicle was “parked” in an unauthorised way. The photos merely show that the vehicle was entering and leaving the car park.

8: 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 - given the minuscule font size of the £70, 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:

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 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:

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.

Coupon-mad

Nice and long, and the 'no keeper liability' bit will cause Highview to cancel.

Roosterrs

Thats great. Thanks for your help. I do have one last question.
At the end of the document do I need to put the name and address of the registered keeper of the vehicle and a signature or is this covered when the PDF document is submitted via the POPLA website??

KeithP

Put it in both places.

No need to be secretive. They know the RK's name and address.

Fruitcake

The ebay link doesn't work.

Embed images in the real thing instead of using links. That way the assessor is forced to look at them.

Roosterrs

I submitted my appeal at the weekend. By midday today I had confirmation from POPLA that Highview were not going to challenge the appeal. Very, very happy.
Thanks very much to everyone who helped me with this. It is very much appreciated.
Before submission I also noticed a problem with the pictures so included that info aswell.
If I could of done anything different I would have took a sceenshot of my first stage appeal before submission to ensure I had evidence of the not identifying keeper.
I have complained to my MP and had a response. After today, do I complain again?
Once again, many many thanks for all your help.

Coupon-mad

Brilliant news!

You can complain to your MP in more detail about the entire scam, and that only about 2% of people even try POPLA, so it shows how unfairly weighted the scam is - and that them not contesting a 'forum appeal' shows that outraged ticket fighters have got it right, and that these parking forms are operating the ''outrageous scam'' that Parliament said they were.

Point the MP to the February debate video and ask them to support Sir Greg Knight's Private Parking Bill:

https://forums.moneysavingexpert.com/discussion/5787731/parking-code-of-practice-bill-passed-by-mps

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

Press for change. Imagine all the people who do not know how to beat these.

Roosterrs

My MP responded to say he welcomed that the government is working with Greg Knight. I am going to respond with further information you have given me.
Once again many thanks.

Umkomaas

My MP responded to say he welcomed that the government is working with Greg Knight.

Ask him to confirm that he too will be supporting his efforts, as this might help you determine how you vote in the next General Election.

Very useful Q to ask if you live in a nice marginal constituency. Remarkable how MPs can help you in that kind of situation.

beamerguy

Roosterrs wrote: »

I submitted my appeal at the weekend. By midday today I had confirmation from POPLA that Highview were not going to challenge the appeal. Very, very happy.

So Highview were scamming you right from the start
as with all the PPC's

Well done :beer: