CUP enforcement POPLA appeal

KobeAlt

Hello,

In December 2019 the keeper of the car (but not the driver) received a postal PCN from CUP enforcement referencing POFA 2012 within the 14 day period. The driver of the vehicle allegedly parked in a permit only parking area without displaying a valid permit. I appealed using the template in the Newbies thread. Unsurprisingly they rejected it, here is their response for your reference (in a google doc - with images - so as not to make this post too long).
https://docs.google.com/document/d/1emEcmpDSqEtcfuXHNlAuc5UGz-vTDuhvT4F364tF3NI/edit?usp=sharing

Timeline so far:
19/12/2019 - Event takes place
24/12/2019 - PCN comes through the post
29/12/2019 - I appeal
09/01/2019 - Appeal is rejected and POPLA code is given

I’ve gone back to the carpark to take more images as they provided no images of the signage. Here is the signage that they had up. I don't know how they get away with this - the fact that the signage had folded in half! You can also see it's fallen on itself in the background of images they provided for the PCN.
https://imgur.com/kUaFcsA
https://imgur.com/wfVRAeA
https://imgur.com/mgQNOoC
https://imgur.com/obRXrYk

Now I am appealing at POPLA. Below is my draft. Please review and let me know your thoughts. Would appreciate opinions on any missing points that might be relevant to make this longer as I feel like it looks quite weak and short at the moment. Also what are thoughts on this being rejected at POPLA given the info above? As keeper it looks like they can pursue!

Dear POPLA Adjudicator,

I am the registered keeper of vehicle [XXXX XXX] and am appealing a parking charge from CUP enforcement. I submit the reasons below to show that I am not liable for the parking charge:

1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the Terms and Conditions
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3. No Evidence of Period Parked – NTK does not meet POFA 2012 requirements
4. The signage at the address given is of a “forbidding” nature.

1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the Terms and Conditions

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 £100, which is practically illegible in most photographs due to the similar font size 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.com/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 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:

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.

2. 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

3. No Evidence of Period Parked – NTK does not meet POFA 2012 requirements

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract. Furthermore, POFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NTK to:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

The NTK simply claims “the vehicle was parked at [location].”

The NTK separately states that the vehicle “parked at [location] on [date]”. At no stage does it explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012. The operator cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

4. The signage at the address given is of a “forbidding” nature.

The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. The Defendant refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

Furthermore, no contract formed due to the failure to provide adequate grace periods: The purpose of which is to provide sufficient time for an individual to read the terms of a contract and decide they agree to them.

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.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed, and the appeal should be upheld on every point.

Yours faithfully

Many thanks for you help in advance

Fruitcake

You need to include your images of the signs in your appeal, and all images should be embedded, not linked. That way the assessor has to look at them whereas they might miss a link, or the link might not work.
You could circle the folded sign in the shot from a distance with an editing tool, and also add something to show where the car was parked in relation to that sign (if it helps your case).
You should also include an image of the entrance and any route through the car park to show inadequate signage (if it helps your case).

You could also add other points that the sign does not warn the motorists what the ANPR data will be used for, and that the site boundary is not defined so it is not clear where the parking restrictions actually apply or end as it vaguely refers to "a multiple amount of spaces or area."
(I do think their use of the English language could have been a bit gooder.)

From a post by Ian011,

The 0845 number breaches Regulation 41 of the Consumer Contracts Regulations 2013. These regulations came from BIS, not Ofcom, and took effect on 13 June 2014. This can be reported to Trading Standards (via the Citizen's Advice national Consumer Helpline on 0345 404 0506).

The 0845 number is also a breach of the parking industry Code of Practice. This can be reported to the appropriate trade association.

The omission of call costs from the sign breaches Ofcom regulations that took effect 1 July 2015. This can be reported to ASA via their webform.

This applies to the 0844 number in your case, so you can add a short point if you wish, but do complain to the BPA about this as well.

The_Deep

[FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

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.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

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

KobeAlt

Thanks for you feedback Fruitcake and The Deep.

I have amended my draft. Please let me know your thoughts
https://docs.google.com/document/d/1sQ-xBuh9dPE0oiD8kEu94bykqtnzPMXq5ORYDoYy7u8/edit?usp=sharing

Had to post on as a google doc as it was over the character limit for this post, sorry!

Fruitcake

You could have spread that over more than one post. Having to flit between sites makes it harder to make comments about it.

Having said that, it looks reasonable to me.

Please do include the point about the prohibited premium rate 0844 'phone number, and do complain to the BPA about it as well.

Don't forget the all important complaint to your MP about this unregulated scam.

Umkomaas

Had to post on as a google doc as it was over the character limit for this post, sorry!

4,500 words? Wow. Hope someone has time. The Deep - how are you fixed to critique this? :cool:

KobeAlt

Hi all,
An update on the progress of this. I submitted my POPLA appeal at the beginning of Feb (can post my appeal here later today but is very similar to the appeal in the google doc in my latest post above) and today received a response from POPLA: 

The operator has uploaded its evidence via our portal. As you have not had the opportunity to view the information we have attached to this email.
You have seven days from the date of this email to provide comments on the evidence given. The quickest way to do this is by replying directly. 
Please note that these comments must relate to the grounds of appeal you submitted when first lodging your appeal with POPLA, we do not accept new grounds of appeal at this stage.
Any comments received after the period of seven days has ended will not be considered.
Kind regards
POPLA Team

Is it common for them to ask for additional comments? if so what is recommended I respond with? I've attached CUP's response/evidence.

KobeAlt

Apologies please ignore while I read through the newbies thread.

Coupon-mad

Comments on the evidence:
The car has been photographed for ONE minute only, in front of a white sign that CUP has failed to show in evidence, and thus they have failed to show that bay is restricted or that the driver had a fair opportunity in terms of a grace period to fetch the permit from adjacent premises, as a visitor would have to.  This is why grace periods exist, to prevent immediate ticketing within a minute with no observation period. 

Next to the car is another bay 'BAY ONE' with a yellow sign 'permit holders only' but not this bay...given that it is anyone's guess what the white sign says in front of the car in what appears to be a separate bay with separate rues and no yellow 'permits only bay'  sign, and given that POPLA is an 'evidence-based service' and cannot and must not revert to CUP to ask them. The site plan is of no help at all as it is impossible to work out how it relates to the photographs or where the car was in relation to the site plan.

The landowner contract (don't know, you didn't show us, but if it is heavily redacted, then object to it!).

KobeAlt

Thanks Coupon-Mad.

I'm drafting my comments on the evidence pack now, however, I don't have access to the landowner contract so I can't comment on it! Should I put this in my rebuttal to POPLA? (e.g. since you haven't provided the landowner agreement that CUP attached to their evidence pack, I can not rebut it). I've only been sent the evidence pack via email and nothing is on the portal for me to view or download.

Redx

If there is no clear landowner contract in their evidence pack , say so , hence no landowner authority

All omissions should be commented on