Arena Shopping Centre

NewJoiner

Thank you for your reply Redx, I just didn't want to post the full response with pictures (9 pages long) here.
In any case, if it helps, I will now post most of the text from the appeal.
Thanks.

NewJoiner

Below is the appeal without images, the full version is here - https://www.scribd.com/document/419353062/Popla-2


Dear POPLA,


On the xxxxxxx, Parkwatch issued a parking charge notice highlighting that the above mentioned vehicle was “parked in a manner whereby the driver became liable for a parking charge at Arena Shopping Centre…”

As the appellant I wish to refute these charges on the following grounds:

1) The Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012 (POFA)

2) Parkwatch lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass

3) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver



1) The Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012 (POFA)

To support this claim further the following areas of dispute are raised:

• The NTK fails to provide the details of the relevant land
• The NTK fails provide the specified period

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met as outlined in paragraphs 5, 6, 11 & 12. Parkwatch have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK, as outlined within paragraph 8.
Specifically, they have failed to include the mandatory timeline and wording:

8 (1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must—
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

This appeal would like to specifically highlight subsection (a) as the received NTK was delivered by post. Upon receiving the Notice to Keeper it lacked any detailed or accurate description of relevant land to which said vehicle was parked. The notice to keeper only states “Arena Shopping Centre -Public” without showing any other relevant information to the land i.e. town or postcode. Moreover, the specified location is not a registered business address and does not exist when searched online, it can’t be identified as a specific location by the name used by Parkwatch.

The Appellant is not liable for any charges, as the Notice to Keeper has not been properly ‘given’ under the Protection of Freedom Act (POFA) 2012 and has not stated the location of said charge correctly.

To offer further context to this point, Parkwatch has also omitted the following wording from paragraph 7 (2), of schedule 4, of POFA 2012:

’The notice must –
(a) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose…and the other facts that made those charges payable…

The operator failed to provide specified period of parking in the Notice to Keeper.


2) Parkwatch lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

It is suggested that Parkwatch does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that Parkwatch be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts.

Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

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

The appellant does not believe that Parkwatch had the authority of the landowner.


3) Signage does not comply with the BPA Code of Practice and were not prominent, clear or legible from all parking spaces to form any contract with a driver

The BPA Code of Practice clearly states that:
18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.

Baring this paragraph in mind, there was categorically no contract established between the driver and Parkwatch. 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. Arriving at the car park there is no signage to be found near the location where the car was parked or on route into the car park. Upon further research it is apparent that the initial entrance signs to the car park are located in a way where it is impossible to read while driving, the terms and conditions illegible.

As a result, the driver did not have a fair opportunity to read any of the terms and conditions involving this charge including the cost of stay and methods of payment.

Here, the signs are sporadically placed – particularly to a driver entering the site. In fact, some signs are obscured and hidden in some areas with large areas of the car park without visible signs. The signs are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered. 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. In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

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 same sized print and coloured. 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 operator’s 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.

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 to be able to read the full 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.

Based on these points, it is believed that Parkwatch are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions, driver safety and ensuring the appropriate illumination of signs. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, request that Parkwatch be required to provide strict proof of exactly where the car was parked (from photos taken in the same conditions) and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date, time and lighting condition of the alleged event. I submit that full terms simply cannot be read safely from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. In addition to this, it is requested that any neighbouring signs to the entrance and vehicle parking location to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted or the driver misinformed.

The appellant believe that Parkwatch Signage does not comply with the BPA Code of Practice

In summary, these points demonstrate the claim by Parkwatch is invalid and should the claim continue, further action and evidence requested in this appeal is required from Parkwatch