Worth fighting?

kayloh1

Unfortunately, as mentioned I acted rashly and without researching the topic as I have now. I did name myself and used pronouns such as "I" when appealing first time around, however, they could just call my company and find out the driver I guess? My company is known to just pay first and ask questions later and avoid problems etc at the employee's expense of course (I know it's rubbish).

Yes, the van is marked for commercial use for trade purposes. However, I have noticed something on the original windscreen invoice...

Time first seen: 13:53
Time issue: 13:53

Meaning that they did not give any grace period, to my understanding? Let's say we decide to live by the rules these scumbags want us to live in... Was I meant to read the T&C while in the vehicle since they believe I'm not allowed to leave the vehicle for even one second without receiving their holy invoice on my windscreen?

Could I use this as well to fight this invoice on two fronts? no clear signage and no grace period given?

Redx

kayloh1 wrote: »

however, they could just call my company and find out the driver I guess?

not quite true at all

yes they can call the company, the company can tell them who the lessee is or was (the KEEPER on that day)

your company have no idea who was driving, which is why we tell people not to name the driver and not to use words like "MY , ME , ,MYSELF & I"

YOU have revealed the driver , not the company , when you appealed

kayloh1

No doubt there... I thought these corrupt scumbags would have some sympathy towards my initial appeal which I thought was actually genuine and thus why I didn't bother looking into this more. What consequences does this now have?

Fruitcake

kayloh1 wrote: »

No doubt there... I thought these corrupt scumbags would have some sympathy towards my initial appeal which I thought was actually genuine and thus why I didn't bother looking into this more. What consequences does this now have?

You can't use the PoFA to help you, so you will need to focus on inadequate signage as your main appeal point.

Use the long one from post 3 of the NEWBIES, and include your own images of the small font that fails to meet the BPA CoP requirements.

In addition, use Not the landowner and No standing to issue charges, Grace Periods and Lack of observation period as minor points.

kayloh1

Dear POPLA Adjudicator,

Subject: Parking charge reference number: XXXXXXXXXX, Vehicle Registration: XXXXXXX,

I am the registered keeper of vehicle XXXXXXX and my appeal to the operator UK parking control (UKPC) was submitted and acknowledged on [XXX] but subsequently rejected by a letter dated [XXX]. 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:
1. 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.
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
3. Grace Period: BPA Code of Practice non-compliance

The details on above points are as listed below:-

1. 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:

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting color 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:








Fig 1 Fig 2











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.

The large sign relating to 'Terms and Conditions' with important information about ANPR cameras and 'fines' being obscured by the parking charge tariff sign as well as lamp posts and railings. The fact that this signage has to be read whist traveling into the site makes their placement completely unacceptable.
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.


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 behind other signs, railings and posts (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no visible full terms displayed 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 removed

kayloh1

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

Link removed

''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 removed

''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 removed


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.

When the driver arrived at the car park it was impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located (too high, on the passenger side of the vehicle, not visible from drivers side), invisible after dark (not lit, too high to be lit by virtue of reflecting any vehicle headlights, particularly from a moving vehicle), and the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge.

Bearing all the evidence above in mind, there was categorically no contract established between the driver and UK parking control (UKPC). To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.




Fig 3.

















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 unauthorized 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.











2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

kayloh1

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 authorized 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 Parking Charge 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 POPLAbut 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



3. Grace Period: BPA Code of Practice non-compliance

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. BPA’s Code of Practice (13.1) states that:

“If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking 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.”

BPA’s Code of Practice (13.2) states that:

“If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”


BPA’s Code of Practice (13.4) states that:

“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.”

The BPA Code of Practice (13.2) and (13.4) clearly state that the Grace Period to enter and leave the car park should be a minimum of 10 minutes. Whilst (13.2) and (13.4) do not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period each should apply to (13.1) BPA’s Code of Practice.


Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):

“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.”

It is therefore argued that the duration of visit is in question, since UKPC observed the vehicle at 13:53pm and issued the ticket at exactly the same time at 13:53pm giving an unreasonable grace period.

It is given that:

a) The site is not well lit and relies on nearby street lighting as its primary source of lighting.
b) The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non- compliance with BPA Code of Practice 18.2 and 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.
c) There is no marked parking bay throughout the venue which causes confusion to the applicability of the UKPC contract that was never entered into in the first place.
d) The failure to light signage so as to make signs visible from all parking spaces (which they are not, especially at night time) and legible once located.
e) The lengthiness of UKPC signage (in terms of word count) all written in tiny text the across of the sign (see Figure 3)



All factors discussed above serve merely to increase the time taken to:

• Locate a sign indicating entrance
• Locate a sign containing the terms and conditions
• Read the full terms and conditions in the darkness
• Decipher the confusing information being presented
• Decide not to park and therefore not entering into a contract
• Return to car and safely leave the car park


So, for this appeal, I put this operator to strict proof of the duration the vehicle was parked for to allow a grace period and 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.

kayloh1

I removed the links and images used. Total page count is 7 with over 3000 words. Altered things here and there to match my circumstances. Any advice to improve or add?

Coupon-mad

I think you need to put 'grace periods' first and start by saying that the driver of a commercial vehicle cannot possibly know in advance about any charges, obligations or penalties for commercial vehicles until they have entered the car park and read the signs dotted around inside the site.

Even then it's nigh on impossible to find that rule.

Show POPLA this entrance sign (embed it into the document, not as a separate image upload for POPLA to have to look at separately):

https://goo.gl/maps/S8nnRvzAKm2ePw3a7

And point out that any arriving shopper is only able to read '2 hours maximum stay' as the only legible obligation or contractual term. The same can be said for the signs inside - only those words are in large lettering. Even once a driver has had a chance to read a sign, and if they could make out what the small print next to the pictures actually says, how can they know what constitutes a 'commercial vehicle' if the driver is merely shopping that day and happens to be using a van for their personal shopping at Matalan (not for commercial use)?

In any case, it seems UKPC has issued a PCN after just one minute or less of arrival, giving the driver no chance to learn about the terms by which they are unexpectedly being bound, given the only words that can be read are '2 hours free stay'.

kayloh1

I've updated the table of contents to match the new layout and added the following information for the first few paragraphs. Thoughts on any improvements, please?





1. Grace Period: BPA Code of Practice non-compliance
2. 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.
3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.



The driver of the vehicle cannot possibly acknowledge about any of the charges, obligations or penalties for commercial vehicles until the driver has entered the car park, then find a suitable parking location and finally proceed to exit the vehicle to read the signs located around the site.

Unfortunately, this is impossible to achieve while in a moving or stationary vehicle as the only legible obligation on the signs are the maximum time permitted on site; ‘2 hours maximum stay’. This is due to the fact that the font size for such a contractual term is of a large size compared to the rest of the sign which is of a small fine print size.

The following image shows the entrance to the car park site with the only legible part of the contract being the maximum permitted time:

[Link removed] Should I use an actual image of the site, since I took one at the time? Bear in mind, I used the same image during the signage part (Part 2) around half way or should I use a link for google maps?

It is therefore argued that the duration of visit is in question, since UKPC observed the vehicle at 13:53pm and issued the ticket at exactly the same time at 13:53pm giving an unreasonable grace period.

Even when the driver has had the time to read the small fine print next to the pictograms on the signs, the driver cannot assume what the meaning ‘no commercial vehicles’ stands for, since the driver was only visiting to do their shopping so therefore the drivers van is not in commercial use but instead for transformational use. This delays more time as the driver will then need to find somebody to enquire for additional information.