Blue Badge & grace periods

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/75892503#Comment_75892503

_pale_

A_lot_of_moss

Thanks CM, my grammar is now amended.

Coupon-mad

No, it isn't. Those poor verbs ('received' and 'am'), isolated from the letter ''I''!

I, the registered keeper of this vehicle, received a letter dated 27/03/2019 acting as a notice to the registered keeper. My appeal to the Operator –Premier Park Ltd –was submitted and acknowledged by the Operator on 26/04/2019 and rejected via an email dated 07/05/2019.

The reason for issue of the notice, according to the ANPR images, is that the car overstayed the paid parking time by 21 minutes. The car was displaying a blue badge.

I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

A_lot_of_moss

You are quite right, thank you.

Coupon-mad

I can't read it till that's gone. Seen it so often I detest that example!

A_lot_of_moss

[FONT=&quot]Here is my revised version. I've cut the signage section in order to get under the 25K character limit.
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[FONT=&quot]
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[FONT=&quot]I received a notice to keeper dated 27/03/2019 from Premier Park Ltd. My appeal to the operator was submitted and acknowledged on 26/04/2019 and rejected via an email dated 07/05/2019. [/FONT]

[FONT=&quot]The reason for issue of the notice, according to the ANPR images, is that the car overstayed the paid parking time by 21 minutes. [/FONT][FONT=&quot]The car was displaying a blue badge.[/FONT]

[FONT=&quot]As the keeper, I wish to appeal against the PCN on the following grounds:[/FONT]

• [FONT=&quot]Grace Period: BPA Code of Practice –non-compliance[/FONT]

• [FONT=&quot]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[/FONT]

• [FONT=&quot]No evidence of Landowner Authority
  
  [/FONT]
• [FONT=&quot]No evidence of compliant signage[/FONT][FONT=&quot]
  
  [/FONT]

[FONT=&quot]1. [/FONT][FONT=&quot]Grace Period: BPA Code of Practice –non-compliance[/FONT]

[FONT=&quot]The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.[/FONT]

[FONT=&quot]BPA’s Code of Practice (13.1) states that:[/FONT]
[FONT=&quot]“Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”[/FONT]

[FONT=&quot]BPA’s Code of Practice (13.2) states that:[/FONT]
[FONT=&quot]“You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”[/FONT]

[FONT=&quot]BPA’s Code of Practice (13.4) states that:[/FONT]
[FONT=&quot]“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”[/FONT]

[FONT=&quot]BPA’s Code of Practice (18.5) states that:[/FONT]
[FONT=&quot]“If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”[/FONT]

[FONT=&quot]The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. It is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice. [/FONT]

[FONT=&quot]Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):[/FONT]

[FONT=&quot]“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”[/FONT]

[FONT=&quot]Finally, the minutes of the Professional Development & Standards Board meeting of 30/07/2015 show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes':[/FONT]

[FONT=&quot]“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in theEnglish book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”[/FONT]

[FONT=&quot]The recommendation reads:“Reword Clause 13.4 to ‘If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 11 minutes.”[/FONT]

[FONT=&quot](Source:http://www.britishparking.co.uk/write/Documents/Meeting%20Notes/Governance/20150730_PDandS_Board_Action_Notes.pdf)[/FONT]

[FONT=&quot]This shows that the intention of stating vaguely: 'a minimum of ten minutes' in the current BPA CoP (not a maximum -a minimum requirement) means to any reasonable interpretation that seconds are de minimis and therefore not taken into account.[/FONT]

[FONT=&quot]If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter a car park, locate (and read) terms and conditions, decide not to enter into a contract and then leave the car park.[/FONT]

[FONT=&quot]Reasonable Adjustments[/FONT]

[FONT=&quot]BPA’s Code of Practice (16.1) states that:[/FONT]
[FONT=&quot]“The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.” [/FONT]

[FONT=&quot]BPA’s Code of Practice (16.1) states that:[/FONT]
[FONT=&quot]“ ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine.[/FONT]

[FONT=&quot]BPA’s Code of Practice (16.1) states that:[/FONT]
[FONT=&quot]“Operators of off-street car parks do not have to recognise the Blue Badge scheme. But many choose to do so to meet their obligations under the Equality Act.”[/FONT]

[FONT=&quot]The car was displaying a blue badge. The badge is clearly shown on one of the ANPR images, albeit at a distance. It is a fact therefore that Premier Park Ltd 'knew or should have known' that the car was being used for 'assisted boarding and alighting' of a disabled person.[/FONT]
[FONT=&quot]Although the operator does not operate a blue badge scheme at this car park, it has duties under the Equality Act 2010 (the EA) to make ‘reasonable adjustments’ to avoid discrimination. Such an adjustment would surely be to allow additional time in the Grace Periods for the disabled. However, despite acknowledging the evidence of a blue badge, the operator has dismissed my internal appeal by saying that the car park has a sign that states ‘NO CONCESSIONS APPLY’. [/FONT]
[FONT=&quot]A sign like that is illegal if service providers are relying upon it to exonerate them from their duties under the EA, and whilst they might be able to get away with no disabled bays (depending on the site) that's NOT true of making 'reasonable adjustments' which are not optional.[/FONT]
[FONT=&quot]Service Providers - including parking firms - have legal duties under statute, to ensure that:
- disabled people can access services/premises
- 'reasonable adjustments' are made to policies that would otherwise cause disadvantage
- no detriment is caused to the disabled person and their carers
- the disabled person/their carers are not harassed as a result of anything connected to the disability.

Charging for the time taken for the purpose of assisted boarding/alighting, as if it was 'parking' time, is without a doubt in breach of the Equality Act 2010. Yet contract can never override a consumer's rights under statute.[/FONT]

[FONT=&quot]2. [/FONT][FONT=&quot]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[/FONT]
[FONT=&quot]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. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

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.''[/FONT]

[FONT=&quot]3. [/FONT][FONT=&quot]No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.[/FONT]

[FONT=&quot]The operator has not shown evidence of a compliant contract with the landowner[/FONT][FONT=&quot]

[/FONT]
[FONT=&quot]Section 7.1 of the BPA Code of Practice states [/FONT]
[FONT=&quot]“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

[/FONT]
[FONT=&quot]Section 7.2 of the BPA Code of Practice states [/FONT]
[FONT=&quot]“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”.

[/FONT]
[FONT=&quot]Section 7.3 of the BPA Code of Practice states [/FONT]
[FONT=&quot]“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”.[/FONT]

[FONT=&quot]4. [/FONT][FONT=&quot]No evidence of compliant signage[/FONT][FONT=&quot]

[/FONT]
[FONT=&quot]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.[/FONT][FONT=&quot]

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:

http://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:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

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:


[/FONT]

Redx

we advise people to UPLOAD the POPLA appeal as a pdf after selecting OTHER on their site, meaning nothing needs to be cut as there is no limit

the initial menu where it is bullet pointed should be numbered , same as your sub headers


if you mean the post limit on here, you cut it in two and post 2 posts , one for each half

A_lot_of_moss

Thank you. For some reason the numbered initial list converted itself to a bulleted one when I pasted it on my last post. Also some bits went into bold after pasting. I'll make sure that the pdf I will send to POPLA will have correctly numbered list etc.



Here is the last bit of the signage section.


[FONT=&quot]The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''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:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''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:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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.[/FONT]

Le_Kirk

Any links in a POPLA appeal should be embedded, as assessors will not go chasing links all over t'interweb. Don't give them any excuse to ignore your evidence.

Coupon-mad

Instead of this:

Although the operator does not operate a blue badge scheme at this car park,

and this, which draws attention to something you do not want to Assessor to zone in on:

However, despite acknowledging the evidence of a blue badge, the operator has dismissed my internal appeal by saying that the car park has a sign that states ‘NO CONCESSIONS APPLY’.

I'd delete those two parts and say this instead of that first phrase:

Regardless of whether the operator grants any payment concessions for blue badge holders at this car park...

And I would break down the 'arrival' (observation) and leaving' (grace) periods like here:

https://forums.moneysavingexpert.com/discussion/comment/75812666#Comment_75812666

The bit in blue post #15 is how to make POPLA consider the arrival 'observation period' (with some storyline facts and a scan of the Blue Badge) then the leaving time, again with facts about what took the party those few minutes.