POPLA appeal stage***What chances??

johntownsend

Morning all, I will keep it brief. Not sure which way to appeal this one.

Attempted to use a hotels private pay and display car park in a city center to attend a business meeting.
However the machine was out of order (i didnt take a picture). There was also the option to pay by phone (had no signal).

I then entered the hotel to find out if i would be 'fined' for staying or if i could pay them directly.
I was told by the junior staff member that they think they took payment directly but the senior member of staff i needed to see was busy elsewhere.
After then using the toilet and waiting for a few mins I decided to just park elsewhere.

Roll on one week and I got a PCN, for non payment for a duration of 20mins.

Sent the template appeal from the sticky to Civil Enforcement LTD, got the rejection letter.

How would i be best putting my case forward to POPLA?

Not sure the grace period can save me? :eek:

Umkomaas

Complain to the hotel about the unnecessary delay caused by their machine breakdown and the hesitancy of a junior member of their staff and get them to cancel the charge. They will have employed CEL so will have cancellation capabilities included in their contract.

In addition, follow the procedure laid out in the NEWBIES FAQ sticky, post #1. Use it unaltered. Sometimes (but not always) CEL capitulate at this stage. If not, get your POPLA Code and go from there. Your POPLA appeal will be a lot wider than ‘what happened’ as mitigating circumstances count for little.

CEL signage is now suspect and should be challenged after a very recent POPLA decision. Do you have your own photos of the signage? If not, get some.

https://forums.moneysavingexpert.com/discussion/comment/75741695#Comment_75741695

johntownsend

Umkomaas wrote: »

Complain to the hotel about the unnecessary delay caused by their machine breakdown and the hesitancy of a junior member of their staff and get them to cancel the charge. They will have employed CEL so will have cancellation capabilities included in their contract.]

I complained to the hotel as soon as i received the pcn. The manager said he would attempt to have it cancelled. They then emailed to say that CEL wouldnt allow them to cancel it.

Umkomaas

johntownsend wrote: »

I complained to the hotel as soon as i received the pcn. The manager said he would attempt to have it cancelled. They then emailed to say that CEL wouldnt allow them to cancel it.

Hit the hotel hard on TripAdviser, their Facebook/Twitter accounts to warn others.

Get on with the initial appeal process outlined in the sticky.

johntownsend

Umkomaas wrote: »

Get on with the initial appeal process outlined in the sticky.

Thanks for your swift replies, I have already sent the appeal and got the rejection letter back with a POPLA code

Received a photo of the sign in rejection letter which states 'Payment must be made within 15 minutes of arrival'

Would frustration of contract be a route to take on POPLA appeal?

Umkomaas

johntownsend wrote: »

Thanks for your swift replies, I have already sent the appeal and got the rejection letter back with a POPLA code

Received a photo of the sign in rejection letter which states 'Payment must be made within 15 minutes of arrival'

Would frustration of contract be a route to take on POPLA appeal?

Could be one appeal point, but I’ve never seen a decision turned around on that point. Use the template examples in the NEWBIES FAQ sticky, post #3 and work around those.

But really try to exploit the signage decision from my last night above.

johntownsend

So from reading the sticky post 3 I got this, Should I put all this as my signage point??
Also should I upload the photo they provided which is the same as the post Umkomaas provided the link to in a recent succesful POPLA win??

Signage
The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

LINK NOT ALLOWED

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:

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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 NOT ALLOWED

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

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''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:

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''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 NOT ALLOWED

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.

Fruitcake

Yes.

Embed the photos rather than use links so that the assessor has to see them. Show us the draft of ALL your points before you submit it.

Did you make the social media complaints to warn others as advised?

Have you complained to your MP yet about this unregulated scam.

johntownsend

Thanks for that point about images
I'm not one for social media tbh

MistyZ

johntownsend wrote: »

I complained to the hotel as soon as i received the pcn. The manager said he would attempt to have it cancelled. They then emailed to say that CEL wouldnt allow them to cancel it.

Yet when the initial enquiry was made, you were informed that it may have been possible to pay at the hotel but nobody was available to take payment! Now nobody is able to cancel the PCN, apparently! Also the hotel must have damn well known that the payment machine wasn't working.

What a complete barrel of *&%!

As well as working on the POPLA appeal, contact the manager again straight away, more assertively, reiterating the hotel's role in this. If the hotel is the landowner, they can cancel the PCN. Tell them that, given the circumstances you've outlined, they are duty bound to insist that this PCN is cancelled, anything less is palpably unjust.

johntownsend

Ok so, 1.Signage and 2. Land owner authority seem to be the strongest points to make.

However should I run on about my time spent in the hotel under any 3.Period of grace point??

Car park sign states 'Payments must be made within 15 mins of arrival'. My total period in the car park was 20mins.