Apcoa Railway PCN

Penguin123

Please can someone check my popla appeal before submission


Appealed online using blue template on day 26 (as keeper, driver not identified) and have received a rejection and popla code. .


Background- driver parked at railway station for 20 minutes with ticket , was approx. 10 minutes late back .
Apcoa have uploaded four pictures, three of car parked, one photo is blank. No clear photo of parking ticker or expiry time on ticket.


No NTK yet, windscreen ticket was 25th June.


Many thanks for any help

P




I am appealing as registered keeper of the vehicle XXX against PCN XXX for the following reasons:



1. The car park at xxxxStation is subject to Railway Byelaws and is not considered ‘relevant land’ for transfer of liability from a driver to a keeper


2. APCOA are not entitled to claim under Railway Byelaws, nor have they followed correct procedures if they were entitled to do so.


3. A compliant Notice to Keeper was never served and therefore there can be no keeper liability


4. APCOA has not shown that the individual who they are pursuing is in fact the driver who may have been potentially liable for the charge


5. No evidence of Landowner Authority


6. APCOA has not shown evidence that the current ANPR system is reliable, accurate or maintained and there appears to be no human oversight /quality check over ANPR PCN issuance




1. The car park at Reading Station is subject to Railway Byelaws and is not considered ‘relevant land’ for transfer of liability from a driver to a keeper


The car park at xxxxx Station is railway land, and is therefore subject to Railway. As the Protections of Freedom (PoFA) 2012 Act does not apply on railway land as it is considered ‘not relevant land’, and there can be no transfer of liability from the driver at the time to the keeper.





2. APCOA are not entitled to claim under Railway Byelaws, nor have they followed correct procedures if they were entitled to do so.


By claiming the charge is liable to them, it appears that APCOA are attempting to claim this under railway byelaws. I reject this and put to them strictly to prove on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay APCOA.





I also refer to Freedom of Information Act Request F0013227 whereby the Department for the Secretary of State for Transport has categorically stated that no confirmation or change in laws since the Railways Act 1993 came into force, which empower any person or body other than the courts to impose a penalty for breach of Byelaws 14(1), (2) or (3) made under Section 219 of the Transport Act 2000 (as amended) and made operational on 7 July 2005.





Therefore, any breach of byelaws is a criminal offence, not a breach of any contract APCOA may say the driver entered in to. If the driver is found to have breached byelaws 14 (1-3), the resulting penalty is paid to the government, not to APCOA or the railway. Further, Byelaw offences are decided by the court, not by APCOA; the parking company or railway can only allege the breach.


Furthermore, POPLA guidance issued in 2018 with regard to penalty notices issued under Railway Byelaws, states several expectations of a penalty notice that have not been followed in this instance. For example:


- A Penalty Notice (PN) should say it is a penalty notice


- A PN should confirm how the byelaws were brought to the motorist’s attention


- A PN should confirm the law under which it has been issued


- A PN should not use the words ‘parking charge notice’


POPLA also notes that the timescales of PoFA 2012 should be followed for penalties issued on railway land, ie issued via post in the period of 14 days beginning with the day after the day after that on which the specified period of parking ended. As noted above, a notice to keeper was not sent within this period.






In addition, Paragraph 9 (4) of the PoFA 2012 states that:


(4)The notice must be given by—


(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period




A NTK was not sent to me as registered keeper X days after the alleged event -. Therefore there can be no POFA keeper liability.




4. APCOA has not shown that the individual who they are pursuing is in fact the driver who may have been potentially liable for the charge


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 Notice to Keeper.


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. 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 said:


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 Act 2012.






5. No evidence of Landowner Authority has been provided


As APCOA 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 APCOA is authorised 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 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 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).





Section 7 of the British Parking Association (BPA) Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance.





Section 7.1 states:


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.





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.





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.








I do not believe that APCOA’s mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a Train Operating Company (TOC) gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay APCOA (not that a keeper can be liable anyway on non-relevant land and APCOA cannot enforce byelaws themselves, only the TOC or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court). APCOA have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that APCOA are entitled to pursue these charges in their own right.





I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. It will not be sufficient for APCOA merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put APCOA to strict proof of compliance with all of the above requirements.




6. APCOA has not shown evidence that the current ANPR system is reliable, accurate or maintained and there appears to be no human oversight / quality check over ANPR PCN issuance



There is no evidence provided that APCOA have signed up to the Surveillance Camera Commissioner’s Code of Practice (BPA CoP 21.5).


APCOA have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times.





It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.





Additionally, under section 21 of the CoP, before operators issue a parking charge notice they must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.


There appears not to be any human intervention in this case or cross reference to tickets purchased in the day in question.





APCOA has not provided any evidence to show that their system is reliable, accurate or maintained.





Therefore, for the above reasons, I ask as keeper of vehicle xxxx that my appeal is upheld and PCN XXX cancelled.

Fruitcake

For a windscreen ticket, you should refer to paragraph 8 of the PoFA , not paragraph 9. Different timescales apply. For example, where a NTD was given, an NTK must arrive between day 28 and 56 beginning with the day after the alleged event for keeper liability to apply.

The scammers have about another three weeks to get the NTK out to the keeper, so you need to wait until the 56 days are up, or get as close to it as possible before submitting your PoPLA appeal.
Remember that PoPLA codes last 32 days, so use the extra few days to your advantage if possible.

The 14 days you quote above is from para 9 where no NTD is given.

Use their crap photos to your advantage, especially the blank one, and the lack of clear pics of the windscreen and ticket displayed there. Check the BPA CoP as I think it says the parking operator must thoroughly check the windscreen area for a ticket/permit. He/she has obviously, and possibly deliberately failed to do this which is a breach of the CoP.

If the PCN was issued for an overstay, then you should have a lack of grace periods (note the plural) as an appeal point.

Remove the word "considered" from point 1, including the heading. You are making a statement, it is not relevant land.

There is no point 3, only a heading with that number.

Point 6 does not apply. ANPR was not used.

You should always include the long Inadequate Signage point from post 3 of the NEWBIES.

CRAPCOA NTKs normally have non-PoFA compliant wording, so if one does turn up you would be able to substitute that for your No NTK point instead.

Don't forget to complain to your MP about this unregulated scan.

Penguin123

Thanks will re draft following your advice.
P

The_Deep

IMO paragraph one alone should win it. why not delete the rest, it is only APCOA.

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Penguin123

updated as sending appeal to popla today


As the registered keeper, this is an appeal against the Parking Charge Notice issued by APCOA for an alleged breach of the company's terms and condition in Reading Railway Station Car Park, on the 25th June 2019.

For the avoidance of doubt, the driver’s identity has not been provided and this appeal remains purely from the registered keeper.

Summary of appeal:
1. Railway Land Is Not Relevant Land
2. A compliant Notice to Keeper was never served - no Keeper Liability can apply
3. Appellant not being the individual liable
4. Lack of standing / authority from landowner
5. Non-compliant signage
1-The car park at Reading Station is subject to Railway Byelaws and is not considered ‘relevant land’ for transfer of liability from a driver to a keeper.
The car park at Reading Station is railway land, and is therefore subject to Railway Byelaws. As the Protections of Freedom (PoFA) 2012 Act does not apply on railway land as it is considered ‘not relevant land’, and there can be no transfer of liability from the driver at the time to the keeper.

APCOA are not entitled to claim under Railway Byelaws, nor have they followed correct procedures if they were entitled to do so.
By claiming the charge is liable to them, it appears that APCOA are attempting to claim this under railway byelaws. I reject this and put to them strictly to prove on which byelaw they claim is broken, and in any case, why this would result in an obligation to pay APCOA.

I also refer to Freedom of Information Act Request F0013227 whereby the Department for the Secretary of State for Transport has categorically stated that no confirmation or change in laws since the Railways Act 1993 came into force, which empower any person or body other than the courts to impose a penalty for breach of Byelaws 14(1), (2) or (3) made under Section 219 of the Transport Act 2000 (as amended) and made operational on 7 July 2005.

Therefore, any breach of byelaws is a criminal offence, not a breach of any contract APCOA may say the driver entered in to. If the driver is found to have breached byelaws 14 (1-3), the resulting penalty is paid to the government, not to APCOA or the railway. Further, Byelaw offences are decided by the court, not by APCOA; the parking company or railway can only allege the breach.

Furthermore, POPLA guidance issued in 2018 with regard to penalty notices issued under Railway Byelaws, states several expectations of a penalty notice that have not been followed in this instance. For example:

- A Penalty Notice (PN) should say it is a penalty notice

- A PN should confirm how the byelaws were brought to the motorist’s attention

- A PN should confirm the law under which it has been issued

- A PN should not use the words ‘parking charge notice’


2-A compliant Notice to Keeper was never served - no Keeper Liability can apply.

The PCN states that APCOA may apply to the DVLA for keeper details, thus implying APCOA adheres to PoFA keeper liability. However, even if the land in question was considered relevant land, the parking charge notice does not comply with the strict requirements of Schedule 4 of PoFA 2012 to be followed in order for a parking operator to be able to claim unpaid parking charges from a vehicle’s keeper.

As a result, APCOA have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle:
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;
*Conditions that must be met for purposes of paragraph 4:
6(1) ''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. This is re-iterated further if a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.

The NTK must have been delivered to the registered keeper’s address within the relevant period; which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. This operator failed to serve an NTK, ignoring the strict requirements set out in PoFA 2012, thus have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

3-Appellant not being the individual liable

APCOA has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103). 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. Any person(s), with the consent of the registered keeper, may drive a vehicle as long as the driver is insured.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be and as the Registered Keeper), and 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.

Not being the owner of the vehicle, under the Railway byelaws the registered keeper of the vehicle cannot assumed to be the owner anymore than they can assumed to be the driver.

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 APCOA is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only 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 APCOA, because they cannot use the POFA in this case, 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 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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."

Penguin123

Photographic evidence submitted as part of their evidence fails to show the ticket expiry date.

The BPA code of practice states- -
20.5b In deciding whether a payment ticket has been visibly displayed on a vehicle you must do a thorough visual check of the dashboard and windows.
20.5a When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.
Of the four photographs submitted as evidence by Apcoa, one is blank, three do not adequately confirm the incident with regards the timings stated in the offence as these can not be ascertained from the images. Nor do they prove that a through visual check of the dashboard and window has taken place.

4-No evidence of Landowner Authority has been provided

As APCOA 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 APCOA is authorised 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 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 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).

Section 7 of the British Parking Association (BPA) Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance.

Section 7.1 states:
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.

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.
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.
I do not believe that APCOA’s mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a Train Operating Company (TOC) gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay APCOA (not that a keeper can be liable anyway on non-relevant land and APCOA cannot enforce byelaws themselves, only the TOC or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court). APCOA have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that APCOA are entitled to pursue these charges in their own right.
I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. It will not be sufficient for APCOA merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put APCOA to strict proof of compliance with all of the above requirements.
5-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.

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.

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.

''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:

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.

Penguin123

POpLA appeal-


APCOA declined to offer evidence therefore ticket was cancelled.


Many thanks for the help given.
P