CE LTD 169/193 Soho Road - POPLA Appeal Successful

daheem24

Think I owe it to you all to provide my own PCN case, seeing as my POPLA appeal was successful after using the advice in the Newbies thread.

Please let me know if I've said anything I shouldn't have.

So I received a Letter of Notification Regarding Keeper Liability a month after the alleged incident. Basically said

• I needed to pay up the full fine of £100, as I was the keeper of the vehicle
• They had received no response from their initial PCN issue
• Payment could be made via this or that etc
• Absolutely nothing about appeals

(The offence was that the driver overstayed in the 169/193 Soho Road car park).

So I though "wait a minute, where has this PCN magically disappeared to then ey?". All I could see was a threatening and bullyish letter from Civil Enforcement LTD

Keeping to the golden rule - I admit no liability whatsoever - I gave quite a weak appeal to CE themselves; but let's be honest, they were going to reject it anyway.

daheem24

So now we're at 2 months after the incident.

I trawled these forums, PEPIPOO (I think that's what it's called) and read up on the BPA Code of Practise and Protection of Freedoms Act and put together this appeal to POPLA:

To whom it may concern,

Please find below the three points to which I dispute the penalty to which this appeal regards.

Notice to Keeper (NTK)
Schedule 4 of the Protection of Freedoms Act 2012 states: “4 (1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if— (a) the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met;”

Paragraph 6 states: “The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or (b) has given a notice to keeper in accordance with paragraph 9.”

Also refer to paragraph 21.6 of the BPA Code of Practise (CoP), which states that the notice to keeper must meet the strict requirements in schedule 4 of the POFA. As the keeper of the vehicle, I did not receive a notice to keeper at all. Hence the condition in paragraph 6(1)(b) was not met; hence the requirements in paragraph 9(2) were not met. Also note paragraph 9(5) which states that the notice to keeper must reach the keeper in “14 days beginning with the day after that on which the specified period of parking ended.” Since the offence was on 21st December 2018, 14 days thereafter is 4th January 2019. The first communication I received from CE LTD (the operator) was a letter of notification regarding keeper liability, dated 30th January 2019 – received 1st February 2019. The strict conditions were not met. I put it to the operator to prove that the NTK was sent to (and received by) myself (the keeper) in the period as per paragraph 9(5) of the POFA.

Landowner Authority
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. a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b. b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c. c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d. d who has the responsibility for putting up and maintaining signs

e. e the definition of the services provided by each party to the agreement

Signage
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:

Link which I can't post because I'm new user to MSE

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 which I can't post because I'm new user to MSE

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:

Link which I can't post because I'm new user to MSE

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

Link which I can't post because I'm new user to MSE

''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:

Link which I can't post because I'm new user to MSE

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, 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.

I await the response of the operator with the relevant proofs and documentation as mentioned above.

Yours Faithfully

Remember; don't just blindly copy and paste templates. I found that some of the hyperlinks in the templates were no longer usable.

daheem24

So a couple weeks down the line, CE LTD replied via POPLA with this:

RESPONSE TO POPLA APPEAL

1. There are many clear and visible signs displayed in the car park advising drivers of the terms and conditions applicable when parking in the car park. Drivers are permitted to park in the car park in accordance with the terms and conditions displayed on the signage. These signs constitute an offer by us to enter into a contract with the drivers.

2. Our Automatic Number Plate Recognition (ANPR) cameras recorded the Appellant’s vehicle, registration number in the car park during the date and time shown on the front summary sheet of this appeal.

3. There is more than adequate signage in the car park, as can be seen from the attached site plan. Furthermore, the car park has sufficient lighting and warnings for the Appellant to have acknowledged the signs, and which the Appellant accepted by their actions.

4. We refer you to the Court of Appeal authority of Vine v Waltham Forest London Borough Council [2000] 4 All ER 169 which states:

“the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning”.

5. The nature of the relationship between the Appellant and our company is contractual. The car park is private land and consequently drivers require permission before parking on the land. The Company granted permission by way of making an offer in the signs displayed in the car parks and the Appellant accepted that offer and the terms set out on the signs by their conduct in parking on the land.

6. As previously stated, there was ample signage throughout the site, such that the Appellant had an opportunity to read them, including signage at the entrance to the car park.

7. The British Parking Association advises all motorists:
“Regardless of whether they park in private car parks, Council car parks or on-street, motorists should always park properly and always check any signage displayed to make sure they know and understand the rules that apply. This is especially so if they are visiting for the first time - in order to acquaint themselves with the prevailing Terms & Conditions for parking.”

8. When parking on private land a motorist freely enters into an agreement to abide by the conditions of parking, in return for permission to park. Therefore, the onus was on the Appellant to ensure that they could abide by any clearly displayed conditions.
Unfair Terms in Consumer Contracts Regulations 1999 - Our Charges

9. The charge sought is a contractual term, which is within the recommended British Parking Association (BPA) guidelines, and is compliant the BPA code.

10. The Supreme Court, in their judgment of the recent Parking Eye v Beavis appeal, stated that:

“…the charge does not contravene the penalty rule, or the Unfair Terms in Consumer Contracts Regulations 1999.”

A summary of the Supreme Court’s judgment in the case of Parking Eye v Beavis has been included in the Operator’s evidence pack, but can also be accessed using the following link:

Link which I can't post because I'm a new MSE user

11. We submit that the charge does not cause a significant imbalance of the parties’ rights and obligations arising under the Contract. Furthermore, Lord Neuberger and Lord Sumption asserted the following in the above Supreme Court judgment:
“Any imbalance in the parties’ rights did not arise ‘contrary to the requirements of good faith’, because ParkingEye and the owners had a legitimate interest in inducing Mr Beavis not to overstay in order to efficiently manage the car park for the benefit of the generality of users of the retail outlets.”

It would therefore be erroneous to conclude that the sum claimed must be a genuine preestimation of loss.

Additional Notes

12. The Notice was issued as the Driver failed to make payment for parking for the vehicle, registration YG55OLR.

13. This Parking Charge Notice was issued under Schedule 4 of the Protection of Freedoms Act 2012. As Mr. Meehad Shahriyar has failed to provide us with the driver’s details within 28 days, we are holding him liable as Registered Keeper. Please find enclosed a copy of his original appeal.

14. We refer you to the attached photographic evidence of the vehicle, captured by our Automatic Number Plate Recognition (ANPR) cameras, entering the car park at 12:45 and departing at 14:24 (total duration of 1 hour and 39 minutes).

15. Signage in the car park clearly states ‘’PHONE AND PAY – 1 HOUR FREE PARKING - £1 PER HOUR THEREAFTER - If you do not pay within 10 minutes of arrival, or if you park longer than the period paid for, you agree to pay £100."

16. The Driver failed to purchase parking l for the vehicle, registration YG55OLR, as can be seen from the attached Phone and Pay report which shows the vehicles that did purchase parking on the day in question. The report also demonstrates that other drivers were complying with the terms and conditions, and that the Phone and Pay service was in good working order on the date of violation.

17. Whilst we acknowledge the Appellant’s submissions that we do not have the authority to manage the car park, please note we have attached The Confirmation of Authority.

18. We note the Appellant’s comments that the text was too small, however, motorists must be expected to have sufficiently good sight to read signs brought to their attention. Furthermore, it is clear that the Appellant was aware that there was signage on site.

19. There are many clear and visible sings in the car park, as evidenced by the attached image plan. It should be noted that drivers have an obligation to check for signs when parking on private land - the signs do not need to be placed directly in the position where they parked, they simply must be placed throughout the site so that drivers are given the chance to read them (BPA Code of Practice, 18.3).

They also attached

• ANPR pictures of my vehicle coming in and leaving the car park
• Phone and Pay transactions report
• An image plan and images of signage
• Some stuff about the Beavis Supreme Court judgement
• A scan/copy of the landowner agreement/signature

According to advice here, you should always comment on the operator's POPLA response.
So I commented on the fact that:

• The site plan and signage was taken a year ago and therefore didn't reflect conditions at the time of the offence
• The attachment with stuff about the Beavis case was clearly not relevant for my appeal (so this just seemed like a lazy autopilot response from the operator)
• A few other points (pedantic to be honest) which I've forgotten.

daheem24

Another month down the line - success. Here is the POPLA assessment summary:

Decision: Successful
Assessor Name: Gemma West
Assessor summary of operator case:
The operator’s case is that the appellant failed to make a valid payment.

Assessor summary of your case
The appellant’s case is that he did not receive a copy of the Notice to Keeper and therefore the operator has not complied with the Protection of Freedoms Act (PoFA) 2012. The appellant has questioned landowner authority. The appellant states there is insufficient notice of the amount of the parking charge on the signage.

Assessor supporting rational for decision
It is a parking operator’s responsibility to demonstrate to POPLA that it has issued a parking charge notice correctly and that the parking charge is therefore owed. In the present case, the appellant has challenged the signage. Having reviewed the operator’s evidence pack, I am not satisfied the amount of the parking charge is clearly highlighted. The legality of parking charges has been the subject of a high-profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in Section 18 of the British Parking Association (BPA) Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. In addition to this, 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. The Act then moved on to define “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 independent assessment 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 is not sufficient to bring the parking charge to the attention of the motorist. The operator has provided evidence of the signage at the site. After reviewing the evidence, I can see that the charge is in small writing with a lot of other information and does not stand out from a distance. I appreciate that the amount of the charge is in bold writing, however it does not stand out from a distance. The main terms and conditions about what vehicles parking is permitted for is clear, as this is on its own in bold text. However, the amount of the sign is in smaller writing than this and not in bold so does not stand out. I therefore, cannot conclude that the wording of the notices to be clear, and cannot determine, that the charge is conspicuous or legible. Therefore, I cannot conclude that the PCN has been issued correctly. I have not considered any other grounds for appeal, as they do not have any bearing on my decision. Accordingly, I must allow this appeal.

I hope this helps some people, as I couldn't find much information on this particular car park (with regards to PCNs) when I was looking into it in the early stages.

Thanks for MSE Forums for the win :j

Umkomaas

Very well done on your success. I’ve posted immediately following your input on the POPLA Decisions sticky about how we might use your POPLA decision in other CEL cases. Would it be possible to have a copy of the sign(s) utilised by POPLA to arrive at their decision?

Could you also tell us whether the photos are those taken by you, or submitted to POPLA by CEL please.

NEWBIES - HOW TO UPLOAD LINKS TO PHOTOS/SCANS TO MSE

To upload a photo/scan link, you first need to host it on a free photo hosting site (like Dropbox or Imurg ), copy the URL, paste it here, but change the http to hxxp and we'll do the conversion. Newbies can't directly upload links to photos/scans until they've a few posts under their belt.

daheem24

Sure! So the site plan and images were submitted to POPLA by CEL.

They came in a PDF which I've uploaded to Docdroid.net:

hxxps://docdro.id/kFHw6qh

Le_Kirk

Here is your link made live: -

https://www.docdroid.net/kFHw6qh/399-image-plan-2018-06-07.pdf

Umkomaas

Thanks @daheem24. I’ve added further to my comments on the POPLA Decisions sticky.

daheem24

No worries Umkomaas, always happy to help