Contest PCN when no ticket bought because driver was ill

an1179

This is my EDITED draft POPLA appeal I have some photos taken in the dark but they are not very good

Thank you for your patience with me and for all your help


POPLA Verification Code: xxxxxx


Vehicle Registration: xxxxxxxxxxx


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



• Grace Period: BPA Code of Practice – non-compliance
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• The entrance signs are inadequately positioned and lit and 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
• This case under appeal is more comparable to VINE -V- LONDON BOROUGH OF WALTHAM FOREST; CA 5 APR 2000
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• The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
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• 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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• No Evidence of Period Parked - NtK does not meet PoFA 2012 requirements
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• Vehicle Images contained in PCN: BPA Code of Practice - non-compliance
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• The ANPR System is Neither Reliable nor Accurate
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• The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for
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• Grace Period: BPA Code of Practice –non-compliance
The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.
BPA’s Code of Practice (13.1) states that:
“Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”
BPA’s Code of Practice (13.2) states that:
“You should allow the driver a reasonable ‘grace period’ 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.”
BPA’s Code of Practice (13.4) states that:
“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
BPA’s Code of Practice (18.5) states that:
“If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”
Good car parking practice includes ‘grace’ periods and account for situations like above
Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) says there is a difference between ‘grace’ periods and ‘observation ...:
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park.”
“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”
“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”
So the BPA believes that 5-10 minutes’ observation' period is acceptable depending upon various factors (e.g. Christmas shopper queues) and then you must allow a MINIMUM of another ten minutes at the end - and Mr Reynolds says: ''there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.'
The Signage on entry to the Eastgate Louth Car Park (Figure 1) is not clear detailing the grace period, when the parking period begins and its parking charges, see signage as follows:

Figure 1:Eastgate Louth entrance sign
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• The entrance signs are inadequately positioned and lit and 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
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.
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.
Figure 2 below shows the 'Beavis case' sign as a comparison to the signs under dispute in this case:
Figure 2: Beavis sign

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 and sparsely 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.


Euro Car Parks’ main car park sign on the Eastgate Car Park Louth site (the only one in the car park displaying terms and conditions) is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read (see Figure 1 above).


The section in red text at the bottom of the sign (see Figure 1) that is apparently an “Important Notice” is in tiny text that is impossible to read without a step ladder. It cannot be ignored – the wording used clearly states it isimportant and therefore urges the reader to fully read and understand. Why is something so important so small and illegible? Furthermore, red text on a yellow background is difficult to read in any lighting conditions.


Indeed, in relation to design principles, it is widely known that colour contrast plays a key role in terms of accessibility as it “affects some people’s ability to perceive information (in other words to be able to receive the information visually).”(Government Digital Service, 17 June 2016). Whilst this web page discusses design principles in relation to web design, the same points are true of print-based materials which would include signage.


Areas of this site are unsigned and there are no full terms displayed clearly indicating non-compliance with the BPA Code of Practice (18.3) which states:


“Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”


It cannot be reasonably assumed that a driver drove past and could read a legible sign, observed one upon entrance to the car park, nor parked near one.
Figures 3 & 4 show the car park entrance from the angle at which it would be approached in a vehicle from a 30mph road





Figure 3: Approach from the East





Figure 3: Approach from the West
The BPA Code of Practice (Appendix sets the requirements for entrance signs. Following further research, it is not disputed that Euro Car Parks entrance sign meets these requirements in terms of wording/layout–in fact it is almost a direct copy of the example the BPA provide. What is disputed are other requirements the BPA sets in Appendix B, specifically:



• The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead

In disputing point 1 above, the relevant entrance sign in this appeal case is not readable by drivers without their need to look away from the road ahead (it’s not even visible)
It is therefore suggested once again that Figures 1,3 and 4 serve to reinforce the earlier point made regarding non-compliance with the BPA Code of Practice (18.3), specifically:“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”

Figure 4: View down the car park

Figure 5: View up the car park

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, the signs in the Eastgate car park do not clearly mention the parking charge which is hidden in small print (and does not feature at all on all but one of the signs within the car park site). Large 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 02/06/16, 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 Euro Car Parks 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.''

• This case under appeal is more comparable to VINE -V- LONDON BOROUGH OF WALTHAM FOREST; CA 5 APR 2000


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

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.


• The operator has not shown that the individual who it is pursuing is in fact liable for the charge.


In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.


Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.


The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot – they will fail to show I can be liable because the driver was not me.


The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-


Understanding keeper liability


“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.


There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''


No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:


''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''


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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 including exemptions is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name.


Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.


Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).


Paragraph 7 of the BPA 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


• The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
• Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
• Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement.
• Who has the responsibility for putting up and maintaining signs?
• The definition of the services provided by each party to the agreement.


5) No Evidence of Period Parked; NtK does not meet PoFA 2012 requirements


Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.

Le_Kirk

I have some photos taken in the dark but they are not very good

That's the whole point, to show that a driver could not have seen, read and taken action when the sign(s) is/are unreadable.

Coupon-mad

Remove the intro with the horrendous grammatical aberration of ''I'' followed by a comma, which I have seen so often I want to scream at the person who first wrote that awful rubbish. Maybe English wasn't their first language...it is truly awful grammar.

A POPLA appeal does NOT even need an introduction burbling on about the first appeal!

an1179

Coupon-mad wrote: »

Remove the intro with the horrendous grammatical aberration of ''I'' followed by a comma, which I have seen so often I want to scream at the person who first wrote that awful rubbish. Maybe English wasn't their first language...it is truly awful grammar.

A POPLA appeal does NOT even need an introduction burbling on about the first appeal!

Thank you for your comments and suggestions Coupon-mad. Sorry I (obviously) copied an earlier draft by someone else.

I have edited and corrected the draft.

Coupon-mad

Looks fine. ECP sometimes win at POPLA but still, no-one here pays them!

an1179

I have recieved the Operator Information and Evidence from POPLA I have 7 days to respond - BUT they state that

In xxxxxx's appeal to POPLA she stated that ‘Please see attached’,
however, there are no documents attached.

If there were no documents attached to my appeal surely POPLA would have advised me?

They have also sent lots of photographs which they have taken in daylight and a plan of where notices are on the site

nosferatu1001

How did you not attach any documents?!
No POPLA would not say anything
You uploaded files under "other", yes?
Have y9u checked your view of POPLA?

an1179

I did attach my document - or I thought I did
i cannot see my files or appeal the only documents to view are the response from UKCP

Coupon-mad

POPLA do not tell you if your PDF failed to upload.

You could always email POPLA a copy and allege that their system appears to have failed.

an1179

Response from POPLA

Thank you for your contact regarding your appeal.

I have spoken to my manager regarding the issue with the documents not uploading.

Unfortunately, we will not be able to accept these documents now as it has passed that stage of the process.
We will have to continue with the case progress without the documentation.

Currently, we are awaiting your comments to the operator's evidence.


The UKCP photos are all taken in day light my 'offence' happened in the dark. I have can comment 2000 letters now and I have 4 days. Any help would be gratefully received.