CEL POPLA Appeal By-law

mwnci

Hi, my first crack at a POPLA appeal - I'd welcome any feedback before I send it off. I'm appealing as keeper rather than driver and have not stated at any point that I am the driver. As far as I can gather the car park (custom house quay in Falmouth)is subject to by-laws. Do I need to include the point on signage. Is it too much?

PCN No: XXXXXX
POPLA Code: XXXXX
I, as the registered keeper of the vehicle, am writing this POPLA appeal. Due to the multiple failings of Civil Enforcement Limited, set out in this appeal, the PCN this appeal relates to should be rejected.

1. Civil Enforcement Limited have not proven they have the authority to levy charges on this land. The land in question is owned and controlled by Falmouth Harbour Commissioners (FHC, a Port Trust): I require a full, un-redacted copy of the contract between Civil Enforcement Limited and FHC. This would need to prove Civil Enforcement Limited have sufficient property rights (land owned in Trust), proving they can offer parking as consideration in return for a fee. Without this proof, I can only assume all parking fees are paid to the Trust as the sole entity with those property rights.

2. I have no liability on this matter as the area of alleged parking is land subject to byelaws and therefore is not relevant land as defined by section 3 of Schedule 4 of The Protection of Freedoms Act 2012. Civil Enforcement Limited cannot therefore transfer liability from the driver at the time to myself (the registered keeper).
For clarification, the parking area in question falls under the FALMOUTH HARBOUR (GENERAL) BYE-LAWS under the jurisdiction of Falmouth Harbour Commissioners as detailed here: link removed
The document mentions the quay upon which the Custom House Quay car park stands.
For reference, here is the relevant paragraph from the Protection of Freedoms Act 2012 which clarifies that by-law land is not classified as ‘relevant land
3
(1)
In this Schedule “relevant land” means any land (including land above or below ground level) other than—
(a)
a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b)
a parking place which is provided or controlled by a traffic authority;
(c )
any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

AND

by-law land is not covered by section 3(1a) 3(1b) or 3(1c),
Civil Enforcement Limited should provide proof that the land is not covered by by-law in order to transfer liability to myself. Without this proof, it can be understood that the land is covered by by-law and as such, only the registered driver can be held liable.

3. As described above, the land in question, Custom House Quay in Falmouth, is covered by a statutory control and therefore is not deemed relevant land for the purposes of POFA (Protection of Freedoms Act 2012). Falmouth Harbour Revision Order 1985 (Statutory Instrument No. 1678: <link removed> sets out the ability of the Landowner (Falmouth Harbour Commissioners, FHC) to levy charges (article 5) and manage parking places (article 6). This makes no mention of FHC allowing third parties to act on their behalf. The 2004 revision (Statutory Instrument No. 3400: <link removed> has not repealed these statutory controls.


4. Civil Enforcement Limited's signs on the land, which attempt to form a legally binding contract with members of the public parking their cars on the land, are inadequate. The alleged breach, according to Civil Enforcement, is in contravention of terms and conditions; clearly displayed at the entrance to and throughout the car park. The signs in this car park are not at all prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. At time of the alleged contravention, the one single small sign at the entrance could not be read fully and properly without stopping, and it is also possible to park in a bay without coming close to any other sign. Civil Enforcement are required to show evidence to the contrary.

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:

<Link Removed>

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:

<Link Removed>

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. The wording is mostly illegible as it is so small in size, particularly notice of the actual parking charge itself.

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. On the entrance sign itself there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering, 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, with the text regarding the actual charge being far smaller. 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 and in the case of the charge itself, 0.25 font size, going by this guide:

<Link Removed>

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

<Link Removed>

''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!!!8221; 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!!!8221; or even larger.''

...and the same chart is reproduced here:

<Link Removed>

''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:

<Link Removed>

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.

Separately, I can find no trace of a decided planning application relating to Custom House Quay for the Civil Enforcement Ltd signage and cameras. The only decided planning applications found relate to signage for the leisure centre. Assuming that indeed no planning application was submitted or approved, then the signs hold no validity even were they properly sized, properly legible and properly placed.

Specifically missing from the signs (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside/at the site boundary. It is not stated that the cameras are not for security but are there in order to calculate 'total stay' for the purpose of generating profit from PCNs.

In fact, any reasonable driver would believe that they are authorised to park and rely on their own timekeeping. In circumstances where the terms of a notice are not negotiable (as with car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity in those terms, the rule of contra proferentem shall apply. This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: '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'.

and Paragraph 69: 'Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.'

The driver could never guess that they are responsible for taking into account a period that is somehow back-timed to include a secret timing when the clock started (unbeknown to drivers) from their arrival in moving traffic from the road. If they are, then this must be transparently stated at the entrance and the machine clocks must be set to start a period of parking from arrival, by linking the systems.

Withholding material information from a consumer regarding the 'time when the clock starts ticking' and the commercial purpose of the ANPR cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

<Link Removed>

Misleading omissions: 6.!!!8212;(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)!!!8212;!
(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''

Redx

no its not too much, you want as much as possible


add the point that the driver has not been identified and CEL have failed to transfer liability from the driver to the keeper, ramming it home


stick a bullet point menu with the sub-headers just before main appeal point 1)

mwnci

An update to this:

Decision: Successful - Custom House Quay, Falmouth - Civil Enforcement Limited
Assessor Name: ######

Assessor summary of operator case
The operator has issued a parking charge notice (PCN) to the motorist for the following reason: ‘payment not made in accordance with terms displayed on signage’.

Assessor summary of your case
The appellant is appealing as the registered keeper of the vehicle. He states that the driver has not been identified and Civil Enforcement Limited have failed to transfer liability from the driver to the keeper. He states that this land is subject to Byelaws and is not ‘relevant land’ therefore, liability cannot be transferred to the keeper. The appellant states that no landowner authority nor legal standing to form contracts or charge drivers. The appellant states that there is misleading and unclear signage. To support this appeal, the appellant has provided a document which explains the Harbour byelaws along with a copy of the sign on site.

Assessor supporting rational for decision
The driver of the vehicle has not been identified. Therefore, I will be assessing keeper’s liability in this case. The terms and conditions of this site state: “PARKING, PHONE AND PAY OR PAY AT MACHINE… BETWEEN 8AM – 6PM, 1-2 HOURS £2.00”. Additionally, it states, “If you breach any of these terms you will be charged £100”. The operator has issued a parking charge notice (PCN) to the motorist for the following reason: ‘payment not made in accordance with terms displayed on signage’. The operator has provided copies of its signage, including a site map. Further, the operator has provided photographs from its automatic number plate recognition cameras. The cameras captured the appellant’s vehicle entering the site at 14:40 and exiting at 16:57, which is a total stay of two hours and 17 minutes. The operator has provided a transaction report, searching for payments registered against the appellant’s vehicle. The report shows that the appellant made a payment at 14:42, which allowed two hours parking. However, the appellant remained on site for an additional 17 minutes, in excess of the purchased period. On the face of the evidence, I consider it looks like there is a contract between the appellant and the operator, and the evidence suggests the terms have been breached. I now turn to the appellant’s grounds of appeal to determine if they make a material difference to the validity of the parking charge notice. I note that the appellant has raised landowner authority. Section 7 of the British Parking Association (BPA) Code of Practice sets out to parking operators that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the land owner (or their appointed agent) … In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.” The operator has failed to provide evidence of a contract. Therefore, it has failed to comply section 7 of the BPA Code of Practice. As such, I will allow this appeal and the other grounds raised do not require any further consideration.

Umkomaas

The operator has failed to provide evidence of a contract. Therefore, it has failed to comply section 7 of the BPA Code of Practice. As such, I will allow this appeal and the other grounds raised do not require any further consideration.

So now complain to the DVLA that CEL have breached their KADOE contract with the DVLA by acquiring keeper (your) personal data when they had no reasonable cause - confirmed by POPLA that they had no landowner authority to operate on the land.

Ask them fo thoroughly investigate, apply sanctions, go back over all data requests for this site, require CEL to refund all those to whom NtKs were issued and which resulted in a payment being made to CEL.

Unless this type of FightBack is instigated, CEL will just put your case down to a 'blip', then just carry on regardless at this site to ravish those with less fight and resilience as you. Please do it - you have the personal legitimacy to do so - the forum doesn't have this legitimate level of access.