ParkingEye - Mecca Bingo Dewsbury

NewYorkRoadRunner

Hi,

I have gone through the Newbies thread as well as reading what feels like hours if not days into the world of private parking charges.

I have received a PCN on 03/02 which was issued 14/02 - i have submitted my appeal from the Newbies thread template with no admission as to who was driving, it got rejected, i have a POPLA code.

Would it be ok for me to post my POPLA appeal draft here for any advice? (Newbie's thread says it's ok to post drafts!)

Umkomaas

Would it be ok for me to post my POPLA appeal draft here for any advice? (Newbie's thread says it's ok to post drafts!)

By all means, fire away.

NewYorkRoadRunner

Slightly nervous but here goes - i have removed any URLs and images are not included

Dear POPLA,
PCN Number: XXXXX
POPLA Verification Code: XXXXX

I write to you as the registered keeper of the vehicle XXXXXX. I wish to appeal the £100 Parking Charge Notice (PCN) issued by ParkingEye Ltd.

As the registered keeper, I wish to put forward to you that a ticket was not purchased under the genuine belief that there was no parking charge due to poor and totally inadequate signage. The signage visible to cars arriving car park (Image 1) only applied to the Kirklees Council Car Park and not for the adjacent car park belonging to Mecca Bingo, extremely misleading. The driver was not aware that where they had parked was not part of the Council Car Park. 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 (Image 2).

There was no signage anywhere near to where the car was parked or route into the car park stating the area allocated only for Mecca Bingo customers the driver was unaware they were subject to a parking charge (Image 2). There are no signs at the exit which would be facing the direction of the driver (Image 3).

The driver genuinely did not know they had parked in the Mecca Bingo Car Park, especially as the Kirklees Car Park was free compared to the Mecca Bingo charge of £4 for 24 hours. With the driver only staying for only 28 minutes, it makes no sense why they would park in the Mecca Bingo Car Park as the council car park had spaces. I have been to the car park myself and the way the signs are displayed are very misleading making the driver think that the Mecca Bingo Car park is only to the right of the roundabout and not the full Car Park as you turn from the roundabout. It must also be appealed that the parking charge amount is not a genuine pre-estimate of loss.

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:

*web 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:

*web 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 (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:

*web link*

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

*web 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.''

''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:

*web 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.

It must be noted that ParkingEye has not met the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

So, for this appeal, I put ParkingEye 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 ParkingEye to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. ParkingEye must also demonstrate that the appellant is the driver and therefore liable for the charge. 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.

Edna_Basher

NewYorkRoadRunner wrote: »

I have received a PCN on 03/02 which was issued 14/02

In which case this should have been a ParkingEye "golden ticket".

According to Paragraph 9 of Schedule 4 of POFA, the relevant period for delivery of a notice to keeper was the 14 day period from Monday 4/2/19 - Sunday 17/2/19 inclusive.

Even if the PCN had been posted on the "Issue Date" of Thursday 14/2/19 it would be deemed to have been delivered 2 working days later on Monday 18/2/19 (i.e. after the relevant period had ended).

Have a look on the back of the PCN. Does it make any reference to Paragraph 9 of Schedule 4 of POFA?

NewYorkRoadRunner

No mention on the PCN but it is mentioned on my unsuccessful appeal (that was emailed) - below is what is said:


Further Information

About us

The Protection of Freedoms Act 2012 was passed by Parliament in order to return to the British public, ‘freedoms’ they feel other legislation has eroded or removed over time.
The Act deals with a wide range of issues and one of those is the ban on immobilising (‘clamping’) or removing (‘towing-away’), without lawful authority, vehicles that are parked private land.
The Act also introduced the concept of 'keeper liability' for vehicles parked on private land. However, for this, there had to be an independent appeals service, provided by funding from the parking industry.
That independent service is known as Parking on Private Land Appeals or POPLA.

Umkomaas

GOLDEN TICKET

Does the reverse page of your Notice to Keeper (NtK) contain a paragraph about the Protection of Freedoms Act 2012, which commences 'You are notified under paragraph 9(2)(b) of Schedule 4 ..... '. And a further paragraph which commences 'You are warned that if, after 29 days from the date given ....'?

I guess not from your prior responses. Look to other PE Golden Tickets successful POPLA appeals and use those as your base for your own appeal by undertaking a forum search using keywords 'ParkingEye Golden POPLA' (note 'ParkingEye' all one word).

HOW TO USE THE FORUM SEARCH FUNCTION:

Hit your 'Back' button to get back to the forum thread list. On the bar just above the threads you'll see the 'Search' function. Click on the 'Advanced Search' button and on the following page place your keyword(s) in the 'Search By Keyword(s)' and make sure the 'Show Results As' button (at the foot of the window) is changed from 'Threads' to 'Posts'.

Edna_Basher

NewYorkRoadRunner wrote: »

No mention on the PCN.....

Excellent - in which case you have a "golden ticket". Although ParkingEye may have referred to POFA in their standard rejection letter, they will have been careful not to suggest that it had any relevance to the PCN that they have issued to you.

The fact that ParkingEye's PCN makes no mention of POFA and makes no attempt to hold the keeper liable for the charge should be the first point in your submission to POPLA.

Beware - in case you are assigned one of POPLA's weakest assessors, you will need to spell this out in simple Fisher Price language avoiding using too many long words.

NewYorkRoadRunner

Sounds very promising - thank you for your replies, appreciated

NewYorkRoadRunner

Update - I was unsuccessful with POPLA! I am now in contact with my local MP to help get the charge overturned.

Anyone else have any other thoughts?!

Umkomaas

You never answered my questions in post #6. Why? They were intended to help you.

What exactly did you say in your POPLA appeal? What did PE say in response? How did you comment on their reply? For what reason did POPLA find in PE’s favour?

Some big gaps here.

Prepare yourself for a court case, I’m afraid.

Coupon-mad

How could anyone have lost a Golden ticket case? I am being serious.

Either POPLA mucked up, or you let slip who the driver was, or you were not looking at the first PCN when you told us it was a no POFA one, maybe you were looking at the reminder?

So if this was this a POPLA error then you must email a complaint.

A keeper who has not admitted to driving cannot be held liable, with a non POFA PCN. POPLA have to consider the keeper liability and atisfy themselves as to whether the driver has been admitted even if the appellant doesn't mention it.

You did add something to your POPLA appeal and/or comments about though, surely, to give POPLA the steer they sometimes need?