Britannia Parking POPLA appeal

crazydoglady91

Hi there,

I would appreciate some help with the POPLA appeal letter I'm working on. I received a NtK from Britannia Parking for an alleged contravention at Quayside car park in Poole. It's somewhat urgent, I only have 2 days left until my code expires (I've had a hell of a month )

In particular I would like help with the Grace Periods section. It seems like many of the examples are from those who left the car park after just over the 10 minute grace period. This alleged contravention is for an overstay of 37 minutes. I'm also not sure about the sections "No breach of Contact" and the final section, it seems like these might be remnants from older appeals. I searched the forum for cases similar to mine, which is where I found these sections.

I have not identified the driver, and I used the template in the newbies thread for the initial appeal.

One last thing to mention, as I'm not sure whether it would be relevant to bring in. There were actually 2 different drivers in this case. One entered the car park and purchased the ticket. The second removed the car from the car park at the exit time (they were designated driver). I wondered whether I could make an argument around there being no clear guidance over who it is who enters into the contract in this case. Is it the person who parks and buys the ticket, or is it the person responsible for removing the car at the end of the parking period?

Let me know your thoughts, thanks in advance!

crazydoglady91

Here's the letter, part 1:

Dear POPLA Assessor,

POPLA VERIFICATION CODE: XXXXX

I received a Notice to Keeper from Britannia Parking regarding a parking charge of £100.

I am disputing this demand on the following grounds:

1. PCN was not properly given because the alleged contravention was “Failed to make a valid payment” when a payment was made

Britannia Parking have admitted they got the contravention wrong on the NtK, as the subsequent rejection of appeal letter alleges that “the PCN was issued to your vehicle because your pay and display ticket had expired'. The driver did not “fail to make a valid payment”. Britannia have offered no proof to me, the appellant, of either of these allegations. Regardless, the NtK was not properly given.

2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

Britannia Parking do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, Britannia Parking have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, issue Parking Charge Notices and take legal action in their name for breach of contract since they do not own nor have any interest or assignment of title of the land in question.

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. British Parking Association – breach of the Code of Practice (CoP): Grace Period

As a member of the BPA, Britannia Parking would be subject to their Code of Practice which states in Section 13:

13.1 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.

13.2 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.

13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.

13.4 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.

Britannia Parking are claiming that the 3 hour ticket purchased for my vehicle had expired and that as my vehicle was recorded leaving the car park at 22:53. This works out to a 37 minute overstay. Firstly, no evidence was included to support their claim of the ticket expiry time, and secondly BPA’s CoP states that grace period at the end of the parking period should be a minimum of 10 minutes. This implies that it may take longer than 10 minutes to exit the car park but this does not amount to an overstay on the period of time on the ticket purchased.

Therefore, I believe that Britannia Parking are in breach of the BPA Code of Practice and are therefore unjustified in issuing the PCN.

4. British Parking Association – breach of the Code of Practice: Unclear Signs

Paragraph 18.3 of the CoP states that “signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

The signage is ambiguous and unclear because the entire sign is about 'PARKING TARIFFS' (not 'total stay') and the sign creates no obligations except that charges apply to Blue Badge Holders and to:

- Enter your full vehicle registration correctly

- Purchase a valid ticket or permit

- Make correct payment

- Avoid parking in non-parking restricted area or access way

As the Pay & Display machine is the 'point of sale' and the Pay & Display ticket is the receipt upon which an ordinary consumer would rely for the parking time, there was no contravention of the sign.

It is wholly deceptive and unfair on drivers to impose a different time limit from cameras, than the time limit set on the Pay and Display ticket. Deceptive information which causes a consumer to take a different decision than they would have done, which then causes them detriment, is unlawful under the 'misleading actions' section (7.3) of the Consumer Protection from Unfair Trading Regulations.

In addition, having two timings running makes you conclude that Pay & Display machines are incompatible with ANPR camera systems and the entire scenario is obviously unfair under the Unfair Terms in Consumer Contractions Regulations.

4.1 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 - 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 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.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

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:

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

''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:

''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:

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.
5. Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach

BPA’s Code of Practice (21.4) states that:

“It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:

• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.”

The guidelines from the Information Commissioner’s Office that the BPA’s Code of Practice (21.4) refers to is the CCTV Code of Practice found at:

The ICO’s CCTV Code of Practice makes the following assertions:

“This code also covers the use of camera related surveillance equipment including:
• Automatic Number Plate Recognition (ANPR);”

“the private sector is required to follow this code to meet its legal obligations under the DPA. Any organization using cameras to process personal data should follow the recommendations of this code.”

“If you are already using a surveillance system, you should regularly evaluate whether it is necessary and proportionate to continue using it.”

“You should also take into account the nature of the problem you are seeking to address; whether a surveillance system would be a justified and an effective solution, whether better solutions exist, what effect its use may have on individuals”

“You should consider these matters objectively as part of an assessment of the scheme’s impact on people’s privacy. The best way to do this is to conduct a privacy impact assessment. The ICO has produced a ‘Conducting privacy impact assessments code of practice’ that explains how to carry out a proper assessment.”

“If you are using or intend to use an ANPR system, it is important that you undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary.”

“Example: A car park operator is looking at whether to use ANPR to enforce parking restrictions. A privacy impact assessment is undertaken which identifies how ANPR will address the problem, the privacy intrusions and the ways to minimize these intrusions, such as information being automatically deleted when a car that has not contravened the restrictions leaves a car park.”

“Note:
... in conducting a privacy impact assessment and an evaluation of proportionality and necessity, you will be looking at concepts that would also impact upon fairness under the first data protection principle. Private sector organisations should therefore also consider these issues.” “A privacy impact assessment should look at the pressing need that the surveillance system is intended to address and whether its proposed use has a lawful basis and is justified, necessary and proportionate.”

The quotations above taken directly from the ICO’s CCTV Code of Practice state that if Britannia Parking wish to use ANPR cameras then they must undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary. It also states that Britannia Parking must regularly evaluate whether it is necessary and proportionate to continue using it.

It therefore follows that I require Britannia Parking Ltd to provide proof of regular privacy impact assessments in order to comply with the ICO’s CCTV Code of Practice and BPA’s Code of Practice. I also require the outcome of said privacy impact assessments to show that its use has “a lawful basis and is justified, necessary and proportionate”.

The ICO’s CCTV Code of Practice goes on to state:

“5.3 Staying in Control

Once you have followed the guidance in this code and set up the surveillance system, you need to ensure that it continues to comply with the DPA and the code’s requirements in practice. You should:

• tell people how they can make a subject access request, who it should be sent to and what information needs to be supplied with their request;”

“7.6 Privacy Notices

It is clear that these and similar devices present more difficult challenges in relation to providing individuals with fair processing information, which is a requirement under the first principle of the DPA. For example, it will be difficult to ensure that an individual is fully informed of this information if the surveillance system is airborne, on a person or, in the case of ANPR, not visible at ground level or more prevalent then it may first appear.

One of the main rights that a privacy notice helps deliver is an individual’s right of subject access.”

Britannia Parking has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, Britannia Parking has not stated a Privacy Notice or any wording even suggesting the keepers right to a SAR on any paperwork, NtK, reminder letter or rejection letter despite there being a Data Protection heading on the back of the NtK. This is a mandatory requirement of the ICO’s CCTV Code of Practice (5.3 and 7.6) which in turn is mandatory within the BPA’s Code of Practice and a serious omission by any data processor using ANPR, such that it makes the use of this registered keeper’s data unlawful.

As such, given the omissions and breaches of the ICO’s CCTV Code of Practice, and in turn the BPA’s Code of Practice that requires full ICO compliance as a matter of law, POPLA will not be able to find that the PCN was properly given.

crazydoglady91

Part 2:

6. 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.

PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of
parking”. Most notably, paragraph 9(2)(a) requires the NtK to:
“specify the vehicle, the relevant land on which it was parked and the period of
parking to which the notice relates;”

Britannia Parking’s NtK simply claims that the vehicle “entered at 19:16:54 and
departed at 22:53:20”. At no stage does Britannia Parking explicitly specify the “period of
parking to which the notice relates”, as required by POFA 2012.

Britannia Parking uses ANPR (while failing to comply with the data protection
'ICO Code of Practice' applicable to ANPR) to capture images of vehicles entering
and leaving the area (which includes a section of the public roadway) to calculate their length of stay. Any vehicle passing by will be captured by ANPR. Britannia Parking, however, does
not provide any direct evidence of its alleged violation. It is not in the gift of Smart
Britannia Parking to substitute “entry/exit” or “length of stay” in place of the POFA
requirement - “period of parking” - and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, Britannia Parking are not able to definitively state the period of parking.

I require Britannia Parking 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.

7. No Breach of Contract

Britannia Parking are claiming that their records show the notice was correctly issued as my vehicle was parked “in breach of the Terms and Conditions of the Car Park”. They do not explain which terms exactly were breached other than to say that the pay and display ticket had expired minutes which they base on the time their ANPR system recorded my vehicle leaving the car park.

The signs do not state that the parking contract begins and ends based on the time you enter and leave the car park. As there is a Pay and Display system in operation, the motorist would rightly interpret that the start of the contract begins from the time you buy your ticket.

According to Paragraph 13.2 of the British Parking Association’s CoP a reasonable ‘grace period’ is to be allowed in which the driver can decide if they are going to stay or leave. They should also be allowed a grace period to read the signs and leave before taking enforcement action.

According to Paragraph 13.4 of the CoP a reasonable grace period should also be allowed for a vehicle to leave the private car park after the parking contract has ended before enforcement action is taken, a minimum of 10 minutes.

Under the principle of contra proferentem an ambiguous contractual term must be read in a manner most favourable to the motorist . In this situation the word "stay" is ambiguous as the operator is relying on this ending at a time which was not brought to the notice of the driver and is clearly open to a different interpretation.

I therefore contend that the contravention did not occur and there was no breach of contract.

8. 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 unauthorized way. The photographs must refer to
and confirm the incident which you claim was unauthorized. 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 NtK in question contains two close-up license plate images. The time and date
stamp and license plate have been inserted on top of (but not part of) the
images. In addition, the image of the licence plate inserted in the second image is a duplication of the first image. Given the large portion of public road which is captured in the image, any vehicle passing by can be captured by Britannia Parking’s APRN. As a result, these images cannot be used as the confirmation of the incident and Britannia Parking claim was unauthorized.
I require Britannia Parking to produce evidence of the original images containing the
required date and time stamp and images showing the car is actually parked in the
location stated rather than just passing by. Given the view of the public road seen in the images, failing to produce such evidence would indicate the Britannia Parking has been using
APRN to engage random license plate collection of all vehicles passing and send NtK with the aim to extract penalty. Such action is no different from sticking parking tickets to all vehicles passing by.

Recent investigation (27 Apr 2018) by BBC
[Link] shows that the private parking
industry is unregulated and does not have any accountability. Various cases show the
industry’s priority is maximizing the penalty received from the motorist without due
regard to the integrity of the evidence. Private parking operators are financially
incentivized not to use the original image as evidence, but putting partial evidence
21 together to generate a case biased towards generating a penalty fee. Based on the
fact above, I require Britannia Parking to produce strong evidence, audited by
qualified third party, to prove that its process is not biased to suit its financial
objective.

9. The ANPR system is unreliable and inaccurate

Britannia Parking’s evidence shows no parking time, merely photos of a car driving in and out. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event.
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.”

Britannia Parking is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require Britannia Parking to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss in the case of Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from Parking Eye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.


9. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for

The signs fail to transparently warn drivers of what the ANPR data will be used for
which breaches the BPA Code of Practice and the Consumer Protection from Unfair
Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of
the cameras.

Paragraph 21.1 of the BPA Code of Practice advises operators that they may use
ANPR camera technology to manage, control and enforce parking in private car parks,
as long as they do this in a reasonable, consistent and transparent manner. The Code
of Practice requires that car park signs must tell drivers that the operator is using this
technology and what it will use the data captured by ANPR cameras for.

Britannia Parking’s signs do not comply with these requirements because these car
park signage failed to accurately explain what the ANPR data would be used for,
which is a 'failure to identify its commercial intent', contrary to the BPA CoP and
Consumer law.

There is no information indicates that these camera images would be used in order to
issue Parking Charge Notices. There is absolutely no suggestion in the sentence
above that the cameras are in any way related to Parking Charge Notices.

9. Beavis V ParkingEye not relevant in this case

There are sufficient differences between this incident and the case referred to above and so that case cannot be taken as a precedent.

In Beavis v ParkingEye the car park was a free car park with a limited time and ParkingEye were paying the landowner for the use of the site. In this case the time is not limited and paid for and as far as I know, the operator does not pay the landowner.

In the Beavis v ParkingEye case it was the charge as displayed on the signs in that car park that convinced the Supreme Court Judges that a contract was formed to pay £85. For example:

Lord Neuberger: "The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it.” "The terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed.’’

Lord Mance at 123: “The signs exhibited at the entrance and throughout the car park are large, prominent and legible.”

Lord Hodge at 287: “...fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable.”

In this case, the requirement to pay £100 (see sign below) is not clear and prominent as the Supreme Court commented on in Beavis v ParkingEye. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.

NOTE: I WILL INSERT A PHOTO HERE OF THE SIGN IN MY PDF LETTER

I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Beavis v Parking Eye. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between ParkingEye and the motorist. This was not changed by the later judgment in the Supreme Court.

This is in stark contrast to the present case where there is an economic transaction between the Operator and the motorist, and no restriction on the time of stay was made provided payment of the tariff was made.

This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because a small payment was purportedly not made when the vehicle would otherwise have been welcome to park as it did.

A contractual term which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of Beavis v ParkingEye v the judgment in which is irrelevant in this situation.

Any reliance on the Supreme Court judgment in the case of Beavis v ParkingEye should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility and Parking Eye as that was their only income. As previously mentioned in this situation there is no such justification as the car was welcome to park as it did in return for a small payment to the Operator who is already making income from the site.

10. Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.

I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

And as for whether average consumers 'would have agreed' to pay £100 had there been negotiations in advance, the answer here is obviously no. One could have parked for 24 hours in this car park for £7.50. There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £100 to this parking firm. Their charge relies upon unseen terms, not clear contracts, and should not be upheld.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours faithfully,

crazydoglady91

Bumping up for visibility!

Coupon-mad

I only have 2 days left until my code expires

POPLA codes last 32 days, not 28, so I hope you actually have over the weekend too!

You have three points numbered '9'?

I would not try to use grace periods, nor 'unreliable ANPR' at all.

I would add a point about The Poole Byelaws, whether the car park is within the boundary or not (their job to prove it's not, and they might not bother).

crazydoglady91

You have three points numbered '9'?

Whoops, thanks for that! I did a lot of re-jigging on it and forgot about numbering.

As for the Byelaws, do you have any links you could share that I could add in?

I'll edit as per your other suggestions.

I've added a little more to the section on unclear signage, as I noticed when I went to take photos that pretty much all the signs are positioned directly behind parking bays, making them practically impossible to see in a nearly full car park (as it was, being a Saturday evening in summer at a sea-front location!). Unfortunately the car park wasn't so busy on a Wednesday evening in October, but I managed to find one car parked in front of a sign which illustrates how difficult it makes reading the sign. I added a few more photos of signs with empty parking bays in front of them to illustrate that a) all signs are positioned this way or similar, and b) the potential fine is unreadable from the distance the signs would have to be read from in a busy car park.

Here's what I've added (with photos interspersed within the text, I would add these but I don't think I'm able to add links to my posts yet):

In this location, all signage is easily obstructed from view given that they are placed directly behind the parking bays at a low height (see photographic evidence below). When the car park is full or near full (as it was, given that the alleged contravention occurred on a Saturday evening in summer at a sea-front location in close vicinity to numerous pubs and restaurants), the sign placement would make them impossible to view clearly or legibly. This issue would be further exacerbated in low light conditions such as dusk or night-time, which was the case when the alleged contravention occurred.

This first photo is a clear example of the issue, and the subsequent images prove that other signs are positioned in the same way. In a busy car park, the signs are not visible from all parking spaces. Motorist are unable to approach the signs at a close enough distance to read them. Again, this is exacerbated in low light conditions, as seen below. This photograph was taken within a few feet of the sign, which would have been impossible had the car park been full.

Coupon-mad

No links, use the search (advanced search, show results as POSTS). Put in POPLA byelaws as keywords, and choose this forum only.

I managed to find one car parked in front of a sign which illustrates how difficult it makes reading the sign. I added a few more photos of signs with empty parking bays in front of them to illustrate that a) all signs are positioned this way or similar, and b) the potential fine is unreadable from the distance the signs would have to be read from in a busy car park.

That's good evidence, and might make them give up. Too hard for them, we hope, too much work!

crazydoglady91

Thank you for your help! I'm about ready to send it in then once I've added a point about Byelaws. Fingers crossed!

Nonconform

How did the appeal go crazydoglady91?

crazydoglady91

Hi all! Quick update, I've been taking the steps recommended on this forum. My appeal was a bust, the assessor didn't really respond or even acknowledge the points I made about sign position/height or the Poole Byelaws.

I have received letters from BW Legal since then (including Letter of Claim) and have responded accordingly. This last response to me is where I'm currently at:

Good Morning

Thank you for your recent email, the contents of which have been noted on file.

• Our Client's cause of action is that you breached the terms and conditions of the contract which you entered into by parking your vehicle in the car park, by failing to make a valid payment.

• Our Client is pursuing you as the registered keeper of the vehicle.

• Our Client does intend to reply on Schedule 4 of Protection of Freedoms Act 2012.

• The details of the claim are that your vehicle parked without making valid payment.

• The Parking Charge Notice (PCN) which you have been issued with is for a breach of contract. The only right which you have to enter the land in question are on the terms and conditions which apply. It is unnecessary to apply an analysis of offer, acceptance and consideration quite simply because the contract was formed on mutual promises. By parking your vehicle in the car park you have entered into a unilateral contract with Our Client. Acceptance does not have to be communicated, the act of parking your vehicle is acceptance.

• This is not a claim for trespass.

• Please be aware that the contract between Our Client and the landowner is a legally privileged document which you have no right to inspect. However, should this matter progress to court, the contract will be adduced as evidence.

• Our Client is under no obligation to supply this.

• As established members of the Independent Parking Committee, Our Client adheres to their Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks ('Code of Practice'). This Code of Practice gives recommendations in regards to the signage within the Car Park. The signs within the car park comply with the recommendations in the Code of Practice and are therefore deemed reasonable.

• £100.00 remains unpaid for the Parking Charge Notice. Additionally, you are also liable for our £60.00 instructions fee as your file has been passed to us.

Accordingly, the full Balance is Due.

Please contact us within 7 days of the date of this email to discuss repayment.

Should you have any queries please contact our office on 0113 487 0432, or alternatively sign in or register on our Online Customer Portal at x.

Kind Regards,

bwlegal

I have also sent a SAR to the operator. Any suggestions on what step to take now would be much appreciated!

Coupon-mad

Why not search the forum for a phrase from that letter, and read all the other times we've already answered this?

Try the obvious phrase (spot the error):

As established members of the Independent Parking Committee