CareParking - Park and ride PCN

KeithP

I am the appellant throughout (as I am entitled to be)...

Yes, of course you are the appellant, you are the one appealing.

Where did you find this old template?

If anything, that should be "I am the keeper throughout...".

Tyrannosaurus

Ok, with these inputs I've added the bits from a previous appeal for signage as adequately as I believe applies in this case, and the appellant bit. Added photos of the views from the vehicle supporting the lack of legibility and visibility. Would that do? (I had to remove links, new user):

Dear Sir or Madam,

In reference to PCN XXXXX issued by the operator Care Parking on 16/11/2018. The car was parked in the Ladywell Metrolink Stop Park, Eccles New Road, Ladywell, Greater Manchester M50 1AW, owned by Transport for Greater Manchester.

An appeal to Care Parking was made and rejected. The POPLA reference is XXXXXXX.
I contend that the parking notice was incorrectly issued for the following reasons:

1.Railway Land Is Not ‘Relevant Land’.
2. The operator has not shown that the individual who it is pursuing is in fact the driver.
3. No evidence of Landowner Authority.
4. 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.
5. There is no breach of Railway Bylaw.
6. There is no clear and specific identification of the alleged parking violation nor evidence of it.

1. Railway Land Is Not ‘Relevant Land’
Under Schedule 4 of PoFA 2012, section 1, it states that:

“(1) This schedule applies where –
(a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Following from this, in section 3, PoFA 2012 states that: “(1) In this schedule “relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”. And that: “(3) For the purposes of sub-paragraph (1) (c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question”.

Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by byelaws. Railway land, being governed by Byelaws, is not relevant land and Keeper Liability under PoFA does not apply, and therefore Care Parking are unable to pursue the registered keeper in lieu of the driver’s details.


2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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.

In this case, no other party apart from an evidenced driver can be told to pay. I am the keeper appealing throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the operator 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.

Furthermore, 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.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against 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.''


3. 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - 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 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 (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 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”

4. 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.

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

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

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. Areas of this site are unsigned and it is impossible to read the terms even at the entrance, especially in traffic with cars parked at the entrance and a small sign without a clear view of the terms and charges 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:

link

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

''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:

link

''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

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.
Furthermore, I include photos taken from the bay the car was parked, showing the lack of signs anywhere near it where they could have been read.

Figure 1
Figure 2
Figure 3
Figure 4
Figure 5
Figure 6
Figure 7

5. There is no breach of Railway bylaw.
There is no railway byelaw known as: Abuse of Patron Parking'.
If Care Parking attempt to hold me liable under byelaws, despite the fact it's not relevant land (no PoFA keeper liability possible) then breach of byelaws, too, is denied. Railway Byelaw 14 (2) says specifically: ''No person in charge of any motor vehicle, bicycle or other conveyance shall leave or place it on any part of the railway: (i) in a manner or place where it may cause an obstruction or hindrance to an Operator or any person using the railway; or
(ii) otherwise than in accordance with any instructions issued by or on behalf of an Operator or an authorised person.
.
As described in 5 below, the car was parked inside a marked bay with no contravention of any contractual term.

6. There is no clear and specific identification of the alleged parking violation, nor evidence of it.
The Parking Charge Notification reads “Issue Reason: Abused Patron Parking”. The vehicle was parked on private property in contravention of the site parking restrictions as displayed on the contractual signage in place.
Looking at the signs (Figure 1), the parking restrictions are:
This car part is for use of Metrolink Passengers only.
A parking charge will be issued when:
- Parking in a disabled bay without displaying a valid disabled badge
- Obstructive parking, including outside of a marked parking bay or any unauthorised use of a parking space
- Parking outside of tram service hours except Friday and Saturday nights. See separate notices for Overnight Parking Conditions
- No taxi parking unless in designated collection /drop off service
- Parking on this site whilst not a patron of the Metrolink service

Figure 8
Looking at the photos used by Care Parking as evidence of the patron abuse, it is clearly showing the vehicle parked in a marked bay and within its marked boundaries (Figures 9 -12)

Figure 9
Figure 10
Figure 11
Figure 12

In light of the lack of a clear explanation of what the “abuse of patron parking” and its evidence, I believe this Parking Charge Notice is invalid.

Coupon-mad

Are you also uploading the byelaws as evidence? I would.

Also I just wrote a byelaws POPLA appeal for someone tonight and included a section of the BPA CoP that says quite simply something like:

'for the avoidance of doubt, byelaws land is not 'relevant land'

Add that in too unless you have it? Slap POPLA with as much evidence as you can.

There is also this point, even if it's not byelaws land, it IS provided by a traffic authority and they can't operate their car parks as if they are private land:

Even if POPLA re not minded to agree that this is byelaws land 'under statutory control', it is still not 'relevant land' due to the ownership. The registered keeper cannot be held liable because this is 'Transport for Greater Manchester' owned land, which is defined in the POFA as 'not relevant land'.

Regardless of the wording or date of any NTK, and even regardless of byelaws applying, there can be NO keeper liability.

The POFA states:
‘’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.

2)In sub-paragraph (1)(b)—
“parking place” has the meaning given by section 32(4)(b) of the Road Traffic Regulation Act
“traffic authority” means each of the following—
(a)the Secretary of State;
(b)the Welsh Ministers;
(c)Transport for London;
(d)the Common Council of the City of London;
(e)the council of a county, county borough, London borough or district;
(f)a parish or community council’’

This bay or space is indisputably, a:

“parking place” {with} ...the meaning given by section 32(4)(b) of the Road Traffic Regulation Act 1984;
https://www.legislation.gov.uk/ukpga/1984/27/section/32

which says:

32 (4) (b)“parking place” means a place where vehicles, or vehicles of any class, may wait;

thus it is:

a parking place which is provided or controlled by a traffic authority;

Nothing says it has to be a parking place that's the subject of any statute or Order. It just has to be ''provided by'' a ‘traffic authority’ and Transport for Greater Manchester is certainly a traffic authority.

Moreover, just 2 weeks ago the Local Authorities Ombudsman agreed with my contention:

https://www.kentonline.co.uk/kent/news/council-issued-motorist-illegal-parking-ticket-197975/

''Kent County Council has been forced to pay a motorist £100 for issuing a parking ticket illegally.

The Local Government Ombudsman found the council issued penalty charge notices on public land through a private contractor which is against the rules.

The person who was charged with the fine was also told by the contractor he must pay the charge then appeal but once the charge is paid, he lost his right to an appeal.

The driver was parked in Lullingstone Country Park.

Following KCC's mistakes, the ombudsman Michael King is now warning other local authorities they must follow the "correct process".

Mr King said: “While councils have every right to charge people for parking at their country parks, and motorists can expect consequences for not paying, councils must ensure they are issuing any parking penalties under the correct process.''

Tyrannosaurus

Thanks for that Coupon-mad. I'm still working very long hours making my replies a bit tardy. I appreciate the help. I'll have a digest when I catch a minute.

Tyrannosaurus

Coupon-mad, would you be Ok with me adding your quoted text in my appeal?

Coupon-mad

Yes, and include this somewhere:

For the avoidance of doubt, byelaws land is not 'relevant land'.

Tyrannosaurus

Ok thanks. This is my letter with your inputs. Will that do?
===== BEGIN =====
Dear Sir or Madam,

In reference to PCN XXXXX issued by the operator Care Parking on 16/11/2018. The car was parked in the Ladywell Metrolink Stop Park, Eccles New Road, Ladywell, Greater Manchester M50 1AW, owned by Transport for Greater Manchester.

An appeal to Care Parking was made and rejected. The POPLA reference is YYYYY.
I contend that the parking notice was incorrectly issued for the following reasons:

1.Railway Land Is Not ‘Relevant Land’.
2. The operator has not shown that the individual who it is pursuing is in fact the driver.
3. No evidence of Landowner Authority.
4. 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.
5. There is no breach of Railway Bylaw.
6. There is no clear and specific identification of the alleged parking violation nor evidence of it.

1. Railway Land Is Not ‘Relevant Land’
Under Schedule 4 of PoFA 2012, section 1, it states that:

“(1) This schedule applies where –
(a) The driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Following from this, in section 3, PoFA 2012 states that: “(1) In this schedule “relevant land” means any land (including land above or below ground level) other than - … (b) any land … on which the parking of a vehicle is subject to statutory control”. And that: “(3) For the purposes of sub-paragraph (1) (c) the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question”.

Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by byelaws. Railway land, being governed by Byelaws, is not relevant land and Keeper Liability under PoFA does not apply, and therefore Care Parking are unable to pursue the registered keeper in lieu of the driver’s details.


2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially 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.

In this case, no other party apart from an evidenced driver can be told to pay. I am the keeper appealing throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the operator 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.

Furthermore, 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.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against 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.''


3. 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - 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 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 (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 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”

4. 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.

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 here 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:
- link here -

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. Areas of this site are unsigned and it is impossible to read the terms even at the entrance, especially in traffic with cars parked at the entrance and a small sign without a clear view of the terms and charges 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:

- link here -

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

- link 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:

- link here-

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.
Furthermore, I include photos taken from the bay the car was parked, showing the lack of signs anywhere near it where they could have been read.

Figure 1
Figure 2
Figure 3
Figure 4
Figure 5
Figure 6
Figure 7

5. There is no breach of Railway bylaw.
There is no railway byelaw known as: Abuse of Patron Parking'.
If Care Parking attempt to hold me liable under byelaws, despite the fact it's not relevant land (no PoFA keeper liability possible) then breach of byelaws, too, is denied. Railway Byelaw 14 (2) says specifically: ''No person in charge of any motor vehicle, bicycle or other conveyance shall leave or place it on any part of the railway: (i) in a manner or place where it may cause an obstruction or hindrance to an Operator or any person using the railway; or
(ii) otherwise than in accordance with any instructions issued by or on behalf of an Operator or an authorised person.

Furthermore and for the avoidance of doubt bylaws land is not “relevant land” and even if it is not bylaws land, it IS provided by a traffic authority and the parking operator can’t operate as if they are in private land.

Even if POPLA re not minded to agree that this is byelaws land 'under statutory control', it is still not 'relevant land' due to the ownership. The registered keeper cannot be held liable because this is 'Transport for Greater Manchester' owned land, which is defined in the POFA as 'not relevant land'.

Regardless of the wording or date of any NTK, and even regardless of byelaws applying, there can be NO keeper liability.

The POFA states:
‘’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.

2)In sub-paragraph (1)(b)—
“parking place” has the meaning given by section 32(4)(b) of the Road Traffic Regulation Act
“traffic authority” means each of the following—
(a)the Secretary of State;
(b)the Welsh Ministers;
(c)Transport for London;
(d)the Common Council of the City of London;
(e)the council of a county, county borough, London borough or district;
(f)a parish or community council’’

This bay or space is indisputably, a:

“parking place” {with} ...the meaning given by section 32(4)(b) of the Road Traffic Regulation Act 1984;
- link here -

which says:

“32 (4) (b)“parking place” means a place where vehicles, or vehicles of any class, may wait;”

thus it is:

“a parking place which is provided or controlled by a traffic authority;”

Nothing says it has to be a parking place that's the subject of any statute or Order. It just has to be ''provided by'' a ‘traffic authority’ and Transport for Greater Manchester is certainly a traffic authority.

Moreover, just 2 weeks ago the Local Authorities Ombudsman agreed with a contention:

-link here -

''Kent County Council has been forced to pay a motorist £100 for issuing a parking ticket illegally.

The Local Government Ombudsman found the council issued penalty charge notices on public land through a private contractor which is against the rules.

The person who was charged with the fine was also told by the contractor he must pay the charge then appeal but once the charge is paid, he lost his right to an appeal.

The driver was parked in Lullingstone Country Park.

Following KCC's mistakes, the ombudsman Michael King is now warning other local authorities they must follow the "correct process".

Mr King said: “While councils have every right to charge people for parking at their country parks, and motorists can expect consequences for not paying, councils must ensure they are issuing any parking penalties under the correct process.''

As described in 6 below, the car was parked inside a marked bay with no contravention of any contractual term.

6. There is no clear and specific identification of the alleged parking violation, nor evidence of it.
The Parking Charge Notification reads “Issue Reason: Abused Patron Parking”. The vehicle was parked on private property in contravention of the site parking restrictions as displayed on the contractual signage in place.
Looking at the signs (Figure 1), the parking restrictions are:
This car part is for use of Metrolink Passengers only.
A parking charge will be issued when:
- Parking in a disabled bay without displaying a valid disabled badge
- Obstructive parking, including outside of a marked parking bay or any unauthorised use of a parking space
- Parking outside of tram service hours except Friday and Saturday nights. See separate notices for Overnight Parking Conditions
- No taxi parking unless in designated collection /drop off service
- Parking on this site whilst not a patron of the Metrolink service

Figure 8
Looking at the photos used by Care Parking as evidence of the patron abuse, it is clearly showing the vehicle parked in a marked bay and within its marked boundaries (Figures 9 -12)

Figure 9
Figure 10
Figure 11
Figure 12

In light of the lack of a clear explanation of what the “abuse of patron parking” and its evidence, I believe this Parking Charge Notice is invalid.
==== END ====

Coupon-mad

Looks good to go, as a PDF, under OTHER (as explained in the NEWBIES thread).

Tyrannosaurus

Great. Thanks. Will do and update when I've heard.

Tyrannosaurus

Their site won't accept the popla code. The message is "The number you entered is not valid, Please try again". It is the first time I've seen the time anywhere. There it says the appeal must be received within 28 days from the date of rejection by parking operator. I must have missed here, it can only be my fault.
Have I ruined my chances now? What can I do please?