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ParkingEye The Range Truro outside opening hours
This is my intented POPAL appeal. Thanks a lot for your support.
Dear sir/madam,
POPLA REF xxxxxx
CAR REG yyyyyyyy
As the registered keeper of the car mentioned above I would like to appeal and have cancelled the parking charge notice issued by ParkingEye Ltd for a number of reasons outlined below:
1- Mitigation circumstances
2- Insufficient Signage
3- No evidence of Landowner Authority
1. Mitigation circumstances
The driver of the car entered the car park on a Sunday passed 10pm due to search for a place to make a phone call because the dashboard of the car was showing an alert to stop the car due to engine failure. The driver was driving on the highway A390, and the Range car park was the most immediate place to park. Here I attached the aerial picture of the area as an evidence. Being the driver a usual customer of The Range, where its car park is free (up to 2 hours), this parking seemed to be the best place for short time safety stop. Due to the insufficient signage at the car park, as described in next section, the driver could not guess that being the shop closed, going into the car park was not allowed. The driver never left the car, and took 21 minutes to get help from a professional via a call, to get from him indications that driving slowly,it was possible to continue to the driver’s house, just 10 minutes’ drive from the car park, and to leave the car park. The following morning the car was taken to the garage for reparation; garage invoice is attached in this appeal.
2. Insufficient Signage
The signs in this car park are not prominent, clear or
legible from all parking spaces
The driver of the car entered the car park passed 10pm in February, well into darkness time. There is only one Entrance Sign, and this lacks direct lighting, and the lighting from the parking area is creating a backlighting effect that it is very difficult, if possible at all, to ready the sign properly. According to Appendix B of BPA Code of Practice:
Contrast and illumination: There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.
I attach a picture of such entrance sign as an evidence that it is not readable at darkness ours.
Furthermore, the entrance sign indicates “2 hours max stay” in very big and visible letters, and much smaller an indication of “For use by customers only”. But it is not indicating “for use only whilst shopping in store”. The driver is a usual customer of the shop, therefore is a frequent customer. Even in the case they could have been able to read that sentence, being used to park for free up to 2 hours, they couldn’t imagine that to enter due to car malfunctioning wouldn’t permitted.
I must also note that when entering the car park and stopping in the first car slots, there isn’t any further sign with contract conditions around. As indicated in BPA Code of Practice, article 18.3:
18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.
But in this parking signs are not conspicuous nor legible from most of the park slots. I here attach a picture showing this lack of signs.
I note that within the
Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to
be provided to make a motorist aware of the parking charge. Specifically, it
requires that the driver is given 'adequate notice' of the charge. POFA 2012
defines 'adequate notice' as follows:
''(3) For the purposes of sub-paragraph (2) 'adequate notice'
means notice given by: (a) the display of one or more notices in accordance
with any applicable requirements prescribed in regulations under paragraph 12
for, or for purposes including, the purposes of sub-paragraph (2); or (b) where
no such requirements apply, the display of one or more notices which: (i)
specify the sum as the charge for unauthorised parking; and (ii) are adequate
to bring the charge to the notice of drivers who park vehicles on the relevant
land''.
Even in circumstances where POFA 2012 does not apply, I
believe this to be a reasonable standard to use when making my own assessment,
as appellant, of the signage in place at the location. Having considered the
signage in place at this particular site against the requirements of Section 18
of the BPA Code of Practice and POFA 2012, I am of the view that the signage at
the site - given the minuscule font size of the £sum, which is illegible in
most photographs and does not appear at all at the entrance - is NOT sufficient
to bring the parking charge (i.e. the sum itself) to the attention of the
motorist.
There was no contract nor agreement on the 'parking charge'
at all. It is submitted that the driver did not have a fair opportunity to read
about any terms involving this huge charge, which is out of all proportion and
not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.
In the Beavis case, which turned on specific facts relating
only to the signs at that site and the unique interests and intentions of the
landowners, the signs were unusually clear and not a typical example for this
notorious industry. The Supreme Court were keen to point out the decision
related to that car park and those facts only.
In the Beavis case, the £85 charge itself was in the largest
font size with a contrasting colour background and the terms were legible,
fairly concise and unambiguous. There were 'large lettering' signs at the
entrance and all around the car park, according to the Judges.
This case, by comparison, does not demonstrate an example of
the 'large lettering' and 'prominent signage' that impressed the Supreme Court
Judges and swayed them into deciding that in the specific car park in the
Beavis case alone, a contract and 'agreement on the charge' existed.
Here, the signs are sporadically placed, indeed obscured and
hidden in some areas. They are unremarkable, not immediately obvious as parking
terms and the wording is mostly illegible, being crowded and cluttered with a
lack of white space as a background. It is indisputable that placing letters
too close together in order to fit more information into a smaller space can
drastically reduce the legibility of a sign, especially one which must be read
BEFORE the action of just stopping the car for a short time, without abandon
it.
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.''
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:
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.
Comments
-
[continuation]
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
Based on the above points I respectfully request that POPLA uphold my appeal and cancel this PCN0 -
Firstly, a cautionary tale NEVER to do that again!
Why would anyone pull into a private car park when a car is playing up?
It is the LAST place to look for.
Next time please tell the driver to do the sensible thing and pull over on street, even on a single or double yellow (which is OK for a breakdown situation) as long as it's not a red route or has yellow 'kerb blips' and a no loading sign in operation.
It never fails to amaze me that people don't know NEVER to go into a private car park like this, due to scam cameras.
Anyway if it was dark add some photos taken in the dark, to illustrate what you say. This will be the difference between a certain loss at POPLA and a possible win. But do this again first, BEFORE trying POPLA please:I appeal at The Range, and agree that it was not fair, but said that they can't do anything to help me.
Email the Range Head office and complain, and ask why their local store manager lied that there was nothing they can do, when you have been reliably informed that ParkingEye's standard USER MANUAL allows every retail store to cancel with one email.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD2 -
Hi Coupon-mad, thanks for your quick message. The driver was naive enough to think that such car park was a "friendly" area, having had used it so many times during opening times. And in the night, you don't want to risk stopping in the road when you see a big car park almost empty.
Regarding emailing the Range Head office, I will do so, but I only have tomorrow to get a response, so I am afraid I will have to do the POPLA appeal.
Regarding the photos, yes I have them prepared, taken in the night.
Hope someone will comment on the text of my appeal.
Thanks.0 -
Hi again, Coupon-mad. I was searching for The Range Head office email address to write him/her as you suggested, but I have ended reading this in the FAQ of The Range webpage (https
/ www. therange.co.uk / faq/ #general_store-parking), which doesn't really encourage to write anyone...
Q.Tell me about store parkingIf you require information about parking at a store you can either call your local store or find out more about a store here.
If you have recieved a parking charge notice from a 3rd party parking enforcement agency after a visit to one of our stores, you will have to follow the instructions outlined on the documents you have recieved as The Range are unfortuntely unable to take an action on your behalf with the 3rd party agency.
0 -
Re-read the last lines of C-m's post.fviajero said:Hi again, Coupon-mad. I was searching for The Range Head office email address to write him/her as you suggested, but I have ended reading this in the FAQ of The Range webpage (https / www. therange.co.uk / faq/ #general_store-parking), which doesn't really encourage to write anyone...
Q.Tell me about store parkingIf you require information about parking at a store you can either call your local store or find out more about a store here.
If you have recieved a parking charge notice from a 3rd party parking enforcement agency after a visit to one of our stores, you will have to follow the instructions outlined on the documents you have recieved as The Range are unfortuntely unable to take an action on your behalf with the 3rd party agency.
They are able to 'take action on your behalf', it's just that they have unilaterally decided not to.
A strange stance for them to take. Do they want customers or not?2 -
I had one of these from Parking Eye at Home Bargains having called thinking the store was open, when it wasn't. PE's PCN stated I exceeded 0 mins maximum stay time. POPLA found in my favour as the entrance sign said "1/2 hours free parking" and 0 mins don't offer a contract.
What does the entrance sign say? What does your PCN state?
I will link the thread if you wish, if these points are similar, it contains the assessor's response.3 -
Hi happybagger, thanks for your comment, I would love to see your thread, it seems my same case, please add it!
The entrance sign says: "2 Hours Max Stay - for use by customers only - This car park is private property see signage in car park for terms and conditions".
My PCN says: ... In addition the signage states that, as a maximum stay car park, a Parking Charge is applicable if the vehicle remains within the car park for longer than 0 hours 0 minutes max stay time [...] By remaining at the car park for longer than the stay authorised or without authorisation, in accordance with the terms and conditions set out in the signage[...]
Thanks!1 -
You'll need pics of the signs at that location.
https://forums.moneysavingexpert.com/discussion/5716567/forbidding-sign-grace-periods-or-both/p1
Have a read. My POPLA appeal is in there, obviously but many points are not relevant for yours, the points I make above about entrance sign and reason given for PCN are key for you IMO, but look at the adjudication first.3 -
It's great to have those who have succeeded via forum help, coming back to assist others. Thank you @happybagger, you are a rare bird indeed. Super stuff. 👍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 Street4 -
Making use of lockdown time
May not be earning much money atm, but helping to deny ParkingEye funds is worth much more.
It's a bug I'm glad I caught
I just hope OP has the time to prepare a decent POPLA.2
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