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POPLA Appeal Draft - One Parking Solutions - Parking in a allocated residential space
Halftimeoranges
Posts: 27 Forumite
Hi all,
I'm the registered keeper of a car that received a Windscreen notice and NTK from One Parking Solutions for being parked in an allocated residential parking bay without displaying a permit.
Followed the FAQ up to this point, where I got my POPLA code. Unfortunately time is a bit short on this, got distracted by an obscenely busy period at work. Anyway, draft below after reading a few other appeals that seemed similar to my situation.
1. The signs in the car park are not prominent throughout the car park, clearly legible from within all spaces nor adequately lit to be legible at night.
I am of the view that the signage at the site - given the minuscule font size of the £100, 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:
Image of tweet provided in Coupon-Mad's template
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:
Image of parking sign from Beavis case provided in Coupon-Mad's template
This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.
Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.
It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.
This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''
From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.
The letters seem to be no larger than .40 font size going by this guide:
Link to font size guide provided by Coupon-Mad's Template
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
Link to font visibility guide provided by Coupon-Mad's Template
''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.''
So, a letter height of just half an inch, showing the terms and the 'charge' and placed on a wall or pole and buried in far too crowded small print, is woefully inadequate in an outdoor car park.
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:
Case link from Coupon-Mad's template
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.
2. This charge is incompatible with the rights under the lease - as decided by the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016.
District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''
Attached to this appeal is a copy of the tenancy agreement that states:
“1. This property comes with an allocated parking space (bay XX)”
As in the case referenced above there are no conditions attached to the use of the parking bay and these cannot be unilaterally enforced outside of the contract.
I also refer to the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.
In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.
There can be no legitimate interest in punishing authorised use of the bay, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for use of a parking bay by a driver who has legitimate business and rights to do so.
3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
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 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.
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
4. This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis
The operator makes much of the Beavis case, yet they are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about the abuse of a free, time-limited public car park where signage could be used to create a secondary contract arising from a relevant obligation and where there was a 'legitimate interest' flowing from the landowner, in charging more than could normally be pursued for trespass.
In this case, we have an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.
At the Supreme Court in Beavis, it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''
This is NOT a 'more complex' case by any stretch of the imagination. At 32 in the Beavis decision, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''
Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:
- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''
This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.
In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed appeal point 2 shows that a District Judge in a 2016 case supports my view.
Some of my notes/questions re: above draft.
Section 1, the photos they have provided show the vehicle parked in the dark, then later photos of the vehicle with the windscreen notice attached and relevant signage, all taken during daylight. Should I attempt to take photos myself showing that the lighting of the signage at night is quite poor or rely on the fact that they have provided no evidence of signage in low light conditions to support me?
Section 2, I presume I should just attach my short term leasehold contract to the appeal? The quote within this section is the only mention of parking within the contract and clearly states that the property comes with use of the bay in which the vehicle was parked in my opinion. I had to modify this section a lot as previous appeals I found related to loading/unloading outwith a designated bay so I'd appreciate feedback on this point particularly.
Quick edit: I have also seen referenced in the past something that applies here. The only access to the car park is through being let in by a resident's remote gate control within their flats, or via an electric fob issued to residents to open the gate. Is this worth mentioning as support for my right to access and use the car park?
I'm the registered keeper of a car that received a Windscreen notice and NTK from One Parking Solutions for being parked in an allocated residential parking bay without displaying a permit.
Followed the FAQ up to this point, where I got my POPLA code. Unfortunately time is a bit short on this, got distracted by an obscenely busy period at work. Anyway, draft below after reading a few other appeals that seemed similar to my situation.
1. The signs in the car park are not prominent throughout the car park, clearly legible from within all spaces nor adequately lit to be legible at night.
I am of the view that the signage at the site - given the minuscule font size of the £100, 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:
Image of tweet provided in Coupon-Mad's template
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:
Image of parking sign from Beavis case provided in Coupon-Mad's template
This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.
Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.
It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.
This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''
From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.
The letters seem to be no larger than .40 font size going by this guide:
Link to font size guide provided by Coupon-Mad's Template
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
Link to font visibility guide provided by Coupon-Mad's Template
''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.''
So, a letter height of just half an inch, showing the terms and the 'charge' and placed on a wall or pole and buried in far too crowded small print, is woefully inadequate in an outdoor car park.
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:
Case link from Coupon-Mad's template
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.
2. This charge is incompatible with the rights under the lease - as decided by the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016.
District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''
Attached to this appeal is a copy of the tenancy agreement that states:
“1. This property comes with an allocated parking space (bay XX)”
As in the case referenced above there are no conditions attached to the use of the parking bay and these cannot be unilaterally enforced outside of the contract.
I also refer to the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.
In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.
There can be no legitimate interest in punishing authorised use of the bay, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for use of a parking bay by a driver who has legitimate business and rights to do so.
3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
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 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.
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
4. This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis
The operator makes much of the Beavis case, yet they are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about the abuse of a free, time-limited public car park where signage could be used to create a secondary contract arising from a relevant obligation and where there was a 'legitimate interest' flowing from the landowner, in charging more than could normally be pursued for trespass.
In this case, we have an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that this 'fine' is a conscionable amount to be charged under these circumstances.
At the Supreme Court in Beavis, it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''
This is NOT a 'more complex' case by any stretch of the imagination. At 32 in the Beavis decision, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''
Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:
- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''
This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.
In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed appeal point 2 shows that a District Judge in a 2016 case supports my view.
Some of my notes/questions re: above draft.
Section 1, the photos they have provided show the vehicle parked in the dark, then later photos of the vehicle with the windscreen notice attached and relevant signage, all taken during daylight. Should I attempt to take photos myself showing that the lighting of the signage at night is quite poor or rely on the fact that they have provided no evidence of signage in low light conditions to support me?
Section 2, I presume I should just attach my short term leasehold contract to the appeal? The quote within this section is the only mention of parking within the contract and clearly states that the property comes with use of the bay in which the vehicle was parked in my opinion. I had to modify this section a lot as previous appeals I found related to loading/unloading outwith a designated bay so I'd appreciate feedback on this point particularly.
Quick edit: I have also seen referenced in the past something that applies here. The only access to the car park is through being let in by a resident's remote gate control within their flats, or via an electric fob issued to residents to open the gate. Is this worth mentioning as support for my right to access and use the car park?
0
Comments
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Nearly all of that is superfluous. What matters is do you have primacy of contract? It appears that you do, so all the stuff about signs, Beavis, etc. can be deleted.
Have you read these?
https://parking-prankster.blogspot.com/2016/11/residential-parking.html
https://parking-prankster.blogspot.com/2016/11/ukpc-hit-for-352-for-discontinuing.html
What precisely does your lease/AST say about the need to display a permit or pay a third party contractor if you fail to do so? If it is silent on the matter, (and they usually are), the signs do not apply to you. No contract no BOC. they cannot offer you something you already enjoy by virtue of your lease. Read this
https://parking-prankster.blogspot.com/2016/11/residential-parking.html
and complain to your MP, they may be interfering with your leasehold right to quiet enjoyment, possibly an offence under the Landlord and Tenants Acts.
BTW, do not be side tracked by keeper/driver advice, it very rarely matters in "own space" claims.You never know how far you can go until you go too far.0 -
Ah, ok. The advice I'd read had said not to rely on one avenue for appeal if more than one was valid so I included everything that seemed applicable.
I have an AST that doesn't mention parking or permits in the slightest outside of the following:
14. Special Conditions. The Property is let together with the special conditions (if any) listed in the First Schedule
attached hereto
THE FIRST SCHEDULE (N.B. Clauses in this section have been individually negotiated)
Special conditions:
1. This property comes with an allocated parking space (bay XX)
I've read through it all and it doesn't have any clauses regarding changes/variations to the contract either, and it does have the "quiet enjoyment" clause you mentioned so I'll also complain to my MP for certain but I've stupidly left it too late for that to have any impact on the appeal.0 -
The appeal is of minor importance. If you lose let them take you to court, imo they will struggle.
Also consider a counter claim. Did they have just cause to obtain your details from the DVLA? Did they interfere with your leasehold rights?You never know how far you can go until you go too far.0 -
Primacy of contract should be your first point. Include the relevant part of your lease/AST as proof.
Personally I would still include all other relevant points.
Have you complained to the landowner/landlord/MA? Whoever employed the scammers is jointly liable for the actions of their contractor.
If you wanted to take this further, you could make a court claim for data/GDPR breach since they know your lease (contract) trumps theirs.
You should complain to the DVLA that the scammers have no right to access your personal data since the demised parking space is yours to use as you see fit I accordance with your lease/AST.
The scammers are aware, or should be aware of this.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
The appeal is of minor importance. If you lose let them take you to court, imo they will struggle.
That may be the case but I'm looking for help with the best way for the appeal to be successful because I have no interest in going to court if I don't have to, whether I'd win or lose. I do appreciate the idea of giving companies like this a bloody nose wherever possible but I personally don't have the time or inclination.Primacy of contract should be your first point. Include the relevant part of your lease/AST as proof.
Ok, so I will re-order this so that section 2 comes first and re-title it as a point of primacy of contract. I planned to attach my entire AST to the appeal anyway, but I'll expand the quoted bit to include everything quoted in my response to The Deep.If you wanted to take this further, you could make a court claim for data/GDPR breach since they know your lease (contract) trumps theirs.
How would they know the contents of my lease prior to making the request to the DVLA? Or is that irrelevant?0 -
How would they know the contents of my lease prior to making the request to the DVLA? Or is that irrelevant?
They are employed by the MA or the landowner who should have been familiar with the law surrounding primacy of contract before allowing the scammers to put up signs.
In any event, once you have raised it they should have cancelled the PCN immediately.You never know how far you can go until you go too far.0 -
Halftimeoranges wrote: »That may be the case but I'm looking for help with the best way for the appeal to be successful because I have no interest in going to court if I don't have to, whether I'd win or lose. I do appreciate the idea of giving companies like this a bloody nose wherever possible but I personally don't have the time or inclination.
Ok, so I will re-order this so that section 2 comes first and re-title it as a point of primacy of contract. I planned to attach my entire AST to the appeal anyway, but I'll expand the quoted bit to include everything quoted in my response to The Deep.
How would they know the contents of my lease prior to making the request to the DVLA? Or is that irrelevant?
It's called due diligence. They should know that where residential properties are concerned, the residents will have contracts with landowners, landlords, letting agents etcetera. They will therefore know that they must check to see what each and every resident/property says about parking so as not to infringe on the residents existing rights.
It would be reasonable to expect a company to do these checks before they agree to a contract, especially if their employer is a management agency who may very well not own the land.
The scammers can't simply say, we didn't know, because that would be unreasonable. No responsible company would do that.
Either they know about existing contracts, or they should know, especially if they have been in business for years and have contracts at other residential sites.
In any case, once a resident has told them their lease/AST trumps their third party made up rules, they should cease and desist from ever bothering them again.
It is that simple.I married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Thanks for all the help Fruitcake and The Deep, I got notification that my POPLA appeal was successful today.
POPLA assessment and decision
Decision: Successful
Assessor Name: Ashlea Forshaw
Assessor summary of operator case
The parking operator has issued a Parking Charge Notice (PCN) to the motorist for: “failure to display a valid permit”.
Assessor summary of your case
The appellant has provided a document which outlines his grounds for appeal. The grounds are as follows: • Primacy of Contract held by the Keeper - this charge is incompatible with the rights under the lease - as decided by the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016. • The signs in the car park are not prominent throughout the car park, clearly legible from within all spaces nor adequately lit to be legible at night. • No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. • This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis. To support this appeal, the appellant has provided a copy of the tenancy agreement.
Assessor supporting rational for decision
On this occasion, the driver of the vehicle has not been identified. Therefore, I will be assessing keeper’s liability in this case. The terms and conditions of this site state, “PARKING IS PERMITTED FOR; VEHICLES FULLY AND CLEARLY DISPLAYING A VALID PERMIT IN FRONT WINDSCREEN AND PARKED FULLY WITHIN CONFINES OF A MARKED BAY AND/OR; PRE – AUTHORISED VEHICLES PARKED FULLY WITHIN THEIR ALLOCATED PARKING SPACE”. Additionally, it states, “£100 parking charge notice”. The operator has issued a PCN to the motorist for: “failure to display a valid permit”. The operator has provided copies of its signage displayed at the site, along with a site map. Further, the operator has provided still camera images taken by the parking attendant who was patrolling the site that day. The images show the appellant parked on site with no permit on display. On the face of the evidence, I consider it looks like there is a contract between the appellant and the operator, and the evidence suggests the terms have not been met. I now turn to the appellant’s grounds of appeal to determine if they make a material difference to the validity of the parking charge notice. The appellant has raised more than one ground for appeal. However, I will be focusing solely on the concerns regarding the signs on site. • The signs in the car park are not prominent throughout the car park, clearly legible from within all spaces nor adequately lit to be legible at night. The appellant has said that the £100 displayed on the sign is minuscule and is not sufficient to bring the charge to the motorist. I must refer to section 19.3 of the British Parking Association Code of Practice which states, “If the driver breaks the contract, for example by not paying the tariff fee or by staying longer than the time paid for, or if they trespass on your land, they may be liable for parking charges. These charges must be shown clearly and fully to the driver on the signs which contain your terms and conditions”. In addition to this, I note that within the Protection of Freedoms Act 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. Having looked at the signs on site, I am not satisfied that the parking charge amount for contravening the terms and conditions at the site is clear. The charge is displayed in a small font, placed on signage that is displayed low on the ground on posts, and is amongst other terms and conditions. This does not appear to stand out and so, I believe the signage has not met section 19.3 of the BPA Code of practice. I will therefore allow this appeal and the other grounds raised do not require any further consideration.0 -
POPLA have dodged 'primacy of contract' in favour of 'signage', although if a long(ish)-term resident it's rather improbable that the signs haven't been seen/read. A POPLA cop-out and avoidance of the substantive legal point.
Nevertheless, a win is a win, and a great outcome for whatever reason. Well done OP on costing the neutered c0ckhen the POPLA fee!Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0
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