Stopping not parking

waamo

Paul_Parker wrote: »

I'm working on this, searching for and reading successful POPLA appeals, but I'm not having any luck finding any that relate to stopping, as opposed to parking. Are there any? Links would be appreciated, please.

Jopson vs Homeguard is what you want. As the judge said "stopping isn't parking". Just use the term Jopson in the search box and you should get plenty.

Paul_Parker

OK, how does this read?

1. The incident does not involve parking
2. The signs in this car park are not prominent
3. Signs refer to "parking" not "stopping"
4. No grace period
5. No evidence of Landowner Authority has been provided

== The incident does not involve parking ==

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
"Right to claim unpaid parking charges from keeper of vehicle".

In Park Watch's own words, the incident concerns the matter of "stopping in a no-stopping area" not "parking".

POFA does not cover "stopping in a no-stopping area".

I refer to the judgement in the case of "Jopson Vs Homeguard Services" (case number B96F0A9R, 29 June 2016) [1]. Note that this is an Appeal case, decided by a Senior Circuit Judge:a

"19: [...] is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time.

"20: [...] the Shorter Oxford Dictionary has the following: "To leave a vehicle in a carpark or other reserved space" and "To leave in a suitable place until required." The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars. Delivery vans, whether for post, newspapers, groceries, or anything else, would not be accommodated on an interpretation which included vehicles stopping for a few moment for these purposes. Discussion in this area left the respondent in obvious difficulties, from which the attractive advocacy of Miss Fenwick was unable to rescue it.

"21: Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument) accompanying a frail person inside, must be a question of fact or degree. I think in the end this was agreed. A milkman leaving his float to carry bottles to the flat would not be "parked". Nor would a postman delivering letters, a wine merchant delivering a case of wine, and nor, I am satisfied, a retailer's van, or indeed the appellant, unloading an awkward piece of furniture. [...]"

The burden of proof rests with Park Watach to provide clear evidence that the parking contravention it alleges occurred, and consequently, that it issued the PCN correctly. They have not done this. Park Watch have provided no evidence that the vehicle in question was "parked", as opposed to "stopped". Not one of the four images they have provided is date or time stamped.

The burden of proof rests with Park Watch, 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 a parking charge. They cannot.

As a result, Park Watch have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant.

The above notwithstanding, I also submit:

== The signs in this car park are not prominent ==


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


I note that the Protection of Freedoms Act (POFA) 2012 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 wording on signs referring to parking (not stopping) on double red lines is mostly illegible, being three lines of text no higher, /in total/ than the width of an adult male human finger (see my image #1).

Furthermore, virtually the whole of each of the signs in the area where the vehicle was briefly stopped are too small to be read from a vehicle, much less so from a moving vehicle (see my images 2-4)

It is indisputable that text of such a small size drastically reduces the legibility of a sign, especially one which supposedly must be read BEFORE the action of stopping 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 that a charge applies to "stopping" (as opposed to "parking"), so it cannot be assumed that a driver drove past and could read that a charge applied for stopping.

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.

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 judgement 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 driven prior to stopping 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 stopping and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

The above notwithstanding, I also submit:

== Sign refer to "parking" not "stopping" ==

As can be seen (my photograph #1), the signage (albeit not prominent, as noted above) say "Do Not Park on Double Red Lines", it does not refer to "stopping" there.

There can therefore be no contractual clause relating to stopping, as opposed to parking (see quotes from Jepson vs Homeguard securities, above, for definitions)

The above notwithstanding, I also submit:

== Grace period ==

The BPA Code of Practice provides a grace period at the beginning and end of the parking session. In relation to grace periods, Section 13.1 of the British Parking Association (BPA) Code of Practice explains that: "If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the 'parking contract' with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract".

No such chance was provided in this case. The vehicle arrived, stopped, set down passengers, and left, in a matter of seconds rather than minutes.

== No evidence of Landowner Authority has been provided ==

As Park Watch 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 Park Watch 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 Park Watch's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a land owner 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 Park Watch (not that a keeper can be liable anyway on non-relevant land and Park Watch 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). Park Watch 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 Park Watch are entitled to pursue these charges in their own right.

I require Park Watch to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. It will not be sufficient for Park Watch 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 Park Watch to strict proof of compliance with all of the above requirements.

Links:

[1] [Jopson case PDF URL goes here]

Paul_Parker

I only have a few days until my POPLA deadline; grateful for any feedback.

Coupon-mad

You have some typos:

ParkWatach

Jepson

And you need to remove the stuff near the end about byelaws! It's a retail park!

Paul_Parker

Thank you. Just that clause, or the whole para/ section?

Otherwise OK?

MistyZ

Links - this one: http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html and the Jopson case one at the end .....

My understanding is that POPLA will not follow links and need extracts - do experienced regulars agree?

Umkomaas

MistyZ wrote: »

Links - this one: http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html and the Jopson case one at the end .....

My understanding is that POPLA will not follow links and need extracts - do experienced regulars agree?

I don't think there's evidence one way or the other, but knowing how ball-aching and distracting it is to be opening webpage links then jumping back and to between one page link and the next, I'd recommend physical extracts form the evidence side of the appeal.

There again, POPLA must have been served the same old menu of the same old stuff so many times, I doubt they even bother to read it any more!

Paul_Parker

MistyZ wrote: »

My understanding is that POPLA will not follow links and need extracts

In both cases, the links support text I've quoted in my appeal.

Which, BTW, I've just submitted.

Paul_Parker

POPLA  have replied saying that Defence Systems Ltd (Park Watch) have submitted counter evidence and giving me the standard 7 days/ 2000 characters to reply.

DS's rebuttal includes a statement that "We have not alleged that the vehicle was parked"!

They include larger versions of images previously supplied, in which timestamps (in very small font) can now be seen. They show the vehicle arriving, stopping, stopped with door open, and departing - and cover a period of 43 seconds.

They also rely on a sign that only exists at the far end of the lane where the vehicle was stopped. They make clams of additional signage for which they offer no evidence.

My main concern now is that, on reading some recent POPLA decisions on this forum, there seems to be a troubling degree of arbitrariness.

I'm working on my response (half tempted to simply reply "DS's confirmation that 'We have not alleged that the vehicle was parked' should alone be sufficient grounds for you to dismiss their claim."!), and about to scan past threads for inspiration, though I found none specific to "stopping not parking" last time I looked. Tips welcome, please.

Redx

best to read any popla rebuttals within the 2000 character limit written and approved within the last 12 months , for inspiration

my thoughts on their statement is simple , they issued a PARKING charge notice , yet are not alleging that the vehicle was parked , therefore proving that they failed the grace period mentioned in the BPA CoP and obtained VRM details using false pretences

they are a PARKING company , the name PARK is in Park Watch , so not Stop watch

although it says 7 days , in reality its only 6 days , so beware and be aware