MET McDonald's High Wycombe

Airwalker1979

Hi all.

Hopefully simple case. exactly like so many others. Parked, ate in restaurant with family, came back to windscreen PCN.

Received NTK, unfortunately aligned to POFA. Sent template appeal as per newbies thread. Got reply rejecting my appeal as expected, but with the all important POPLA reference.

So...

Read a few examples, and pretty sure my case is strongest on two points:

1. Signage. The usual. It's dark, not at entrance, can't be easily read, too much text etc.
2. The Survey of the Premises hasn't (yet) been backed with any proof - guessing because none will exist.

Now I've drafted the below for POPLA and I'd be really grateful if you far wiser than I folks could please just scan through and let me know if I'm on track with this. Any suggestions gratefully appreciated. NB. I'll reuse the images MET sent me since they make the signs on the walls in the dark poorly lit underground car park area impossible to red.

______________________________________________


POPLA Verification Code: xxxx

Dear Sir/Madam,

I am appealing Parking Charge Notice xxx, issued by MET Parking Services on 13th July 2019 on the following grounds:

1. The parking charge has been issued incorrectly with no valid supporting evidence

2. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

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


1. The parking charge has been issued incorrectly with no valid supporting evidence.

The rejection letter from MET Parking Services following the initial appeal states that:

“The terms and conditions of use of the car park are clearly stated on signs prominently displayed in this area. These include that the car park is for the use of customers while they are on the premises only. A survey was carried out by our parking attendant with a member of the restaurant's staff of all customers in the restaurant to check if the drivers were present in the restaurant prior to the charge notice being issued. There was no-one on the premises when the survey was conducted taking responsibility for your vehicle therefore we believe the charge notice was issued correctly and we are upholding it."

It is unclear what constitutes the premises - the restaurant only or the restaurant and any of the surrounding area, including the car park, being that there is no hard boundary, signage or other markings to indicate ownership or restriction. If it is only the restaurant, then drivers would be in breach of parking regulations when walking to or from their car to the restaurant. If it does also include areas outside of the restaurant itself, then did the parking attendant also survey every person in that surrounding area, as well as inside the restaurant, and can MET Parking Services offer clear proof of this?

There is no map defining the boundary and no site description so neither the motorist, nor indeed a parking operative can know if/when someone has left the site. If customers are specifically forbidden to leave the premises for any reason, even when they have purchased food from the restaurant, this needs to be made clear on the signs and should be included in the red ‘headline’ section of the signage.

The signage and the leaving site restriction only apply to the driver. Met Parking Services need to prove that anyone alleged to have left the site (noting the aforementioned point that the ‘site’ is never determined and this is therefore impossible) is in fact the driver, not a passenger or even a pedestrian who happened to be bending down next to a car before standing up and being noticed by the parking operative.

There is insufficient evidence that the driver was not on the premises. MET Parking Services need to show clear proof of the efficacy of the site survey - that they checked all parts of the premises including the restaurant toilets, and surveyed every customer in the restaurant and surrounding area (again noting that there is no definition for the boundary of the premises), and identified the specific link between customer and vehicle, and upheld all the requirements mandated by the GDPR when recording all of this personal identifiable information, and took all appropriate measures to ensure any disabilities were accounted for during the survey e.g. that deaf customers were fully accommodated.

The signs displayed around the car park state that it is a McDonald’s car park and there is a maximum stay of 90 minutes. Only in the terms and conditions does it state that it is “for the use of McDonald’s customers whilst on the premises only", which is a contrary distinction to the headline notice that confirms only that it is a McDonald’s car park and the limit of a stay is 90 minutes


2. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

http://imgur.co3/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

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

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden beneath a very large volume of small print. 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, nor was in an area with sufficient illumination to see any sign and read the content.

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. Indeed, their own photographic evidence, supplied, is clearly ineligible.

The letters seem to be no larger than .40 font size going by this guide:

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

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

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

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

''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.




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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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

fisherjim

The leaving the premises scam doesn't get very far with PPC's in all honesty, and I know this car park well they have another PPC on the Premier Inn half too.


What I have also noticed is two cars arriving and the occupants eating in one car together, how would the MET parking muppet check that out.


He does not have any evidence that anyone left site, and all that rubbish about checking toilets etc is garbage, and quite frankly ridiculous.


I have seen the scruffy looking individual he arrives looks around goes inside comes out, he does not go in with a list of VRN's of possible escapees, and if someone accosted me while I was having my gourmet lunch to go through a list of car number plates I would tell him where to stick it.

The_Deep

we believe the charge notice was issued correctly and we are upholding it."

"belief" is not enough, they need to convince a judge that, OTBOP you were AWOL. How can they do tha I wonder? I think that they would struggle in court.

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

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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

Airwalker1979

Thanks for the replies. I'll be sure to notify my MP too.

In the meantime, was there any feedback on the draft above for my POPLA appeal?

Redx

Add a numbered bullet point menu of the 4 sub headers , prior to point 1)

Airwalker1979

Ps. What does OTBOP mean? Wasn't in the newbie acronym list and Google returned nothing relevant.

Airwalker1979

Cheers Redx. i.e. a quick summary of the 4 reasons before I then present each in detail - Will do ����

Redx

Airwalker1979 wrote: »

Ps. What does OTBOP mean? Wasn't in the newbie acronym list and Google returned nothing relevant.

On the balance of probabilities

BTW , I couldn't see point 3) either ????

The usual appeal ground are

No landowner contract or authority
Poor and inadequate signage
POFA failures
BPA Cop failures

Etc

TellMeAboutIt

I would suggest editing your post OP and removing/changing the first paragraph - the parking companies scour these forums and may link your case later with other details

Fruitcake

Expand on what actually constitutes the site. There is no map defining the boundary and no site description so a motorist, or indeed a parking scam operative cannot know if/when someone has left the site.

The signage and the leaving site restriction only apply to the driver. The scammers need to prove that anyone leaving site is in fact the driver, not a passenger or even a pedestrian who happened to be bending down next to a car before standing up and being noticed by the scammer.

Get pics of the site and signage.

Complain to the cafe manager.

Go somewhere else in future.

Airwalker1979

Thanks everyone.
@Redx - you're right - I had 4 originally, but merged two into point 1 as they were essentially the same thing. Now corrected.
@TellMeAboutIt - thanks
@Fruitcake - updated. I have pics showing signage (MET's own pics as they wonderfully show how hard to read the signs are). I don't have any of the overall site but will see if these can be acquired and added. I will indeed complain to the manager (though I'm happy to pursue the case via POPLA anyway if it means I have the chance to force MET to invest resources and time on the case). Already acted with my feet and not returned since.