Initial Parking Fistral

tkake

As the hirer of the above vehicle, I wish to appeal the parking charge notice issued by Initial Parking and have the parking charge notice cancelled based on the following grounds:

 

1.    No hirer/keeper liability.

2.    Lack of signage, unclear & incorrect signage.

3.    No authority from landowner to operate

4.    Photographic evidence is non-compliant

5.    The ANPR system used is neither reliable nor accurate

6.    No evidence of period parked

1.    No hirer/keeper liability, The Notice to Keeper/Hirer is not compliant with either the Protection Of Freedoms Act 2012 or BPA code of practice.

Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper or hirer but this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper or hirer liability' does not exist.

The registered keeper has absolved themselves of any responsibility for the parking charge in question by naming the hirer and supplying the hirer’s address. However, the creditor has not satisfied the conditions to transfer liability from the driver to the hirer:
Paragraph 14 (a) the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper.
The documents required are defined here:
Paragraph 13 (2)(a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
(b) a copy of the hire agreement; and
(c) a copy of a statement of liability signed by the hirer under that hire agreement.
This requirement is also clearly stated in the BPA Code of Practice (BPA CoP) section 21.19: Your Notice to Hirer must satisfy the detailed requirements of Paragraph 14, including:
the contents you need to include in the Notice to Hirer -paragraph 14(5)
the documents you must send with it paragraphs 13(2) & 14(2)

No such documents were supplied with the Notice to Hirer.

 

2.    Lack of signage/unclear signage/non-compliant signage under BPA CoP/no contract with driver.

 

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 £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:

ht tp://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:

ht tp://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.

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

''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:

ht  tp://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 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.

tkake

3.    No authority to operate

BPA CoP:
7.1 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
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

I put Initial Parking to strict proof of both compliance with all of the above requirements and of the contract terms with the actual landowner (not a lessee who has no more title than the operator).
They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Initial Parking is entitled to pursue these charges in their own right in the courts (which is a strict requirement within the BPA CoP). I suggest that Initial Parking are not empowered by the landowner to sue customers and visitors that enter the car park and that issuing PCNs by post is no evidence of any right to actually pursue charges in court.

I contend that the contract (if this operator produces one) does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance.

I require Initial Parking to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, 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.

Furthermore, multiple non-compliance with BPA CoP makes Initial Parking authority with the landowner null and void under BPA CoP 7.1

 

4.    Photographic evidence non-compliant with BPA CoP

“When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered." BPA CoP 21.5a.

The parking charge notice in question contains two photographs of the vehicle number plate which allegedly show the vehicle entering or leaving the car park. However, the images have been closely cropped, in no way confirm the alleged incident and simply have some dates and times printed at the top.

I invite Initial Parking to produce evidence of the original time stamped images showing the vehicle entering and leaving.

 

5.    The ANPR system is neither reliable nor accurate

The Initial Parking evidence shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question.

Additionally, based on the evidence of the photographs, it cannot be discounted that the driver may have driven in and out on two separate occasions both within the allowable grace period. The BPA even mention this as an inherent problem with ANPR on their website.

'As with all new technology, there are issues associated with its use. Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

From the BPA CoP:
22.3 Parking companies are required to ensure ANPR equipment is in good working order.

I therefore require Initial Parking to provide records with the location of the cameras used in this instance, together dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.

In the case of ParkingEye v Fox-Jones on 8 Nov 2013, the case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photo images, I put Initial Parking to strict proof to the contrary.

I suggest that in this case, a local camera took the image but a remote server added the time stamps. As the two are disconnected by the internet (with WIFI also introducing a delay through buffering), the camera and servers do not have a common time synchronisation system, there is therefore no proof that the time stamp appeded to the PCN is actually the exact time of the image.

Hence, without a synchronised time stamp, there is no evidence that the images produced are or can be stamped with an accurate time.

 

6.    No evidence of period parked

The PCN distinctly states that the vehicle was parked during the relevant period and POFA refers numerous times to the period of parking, specifically a Notice to Keeper must:
Paragraph 9 (2) (a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates

By virtue of the nature of only entry and exit times being recorded, Initial Parking are not able to definitively state this period of parking.

 

I respectfully request that this parking charge notice appeal be allowed and await your decision.

Le_Kirk

If this is a POPLA appeal, no links, just embed whatever it is you want to show.  POPLA assessors will not go chasing all over t'Internet following links.

Coupon-mad

Remove #5 as that's pointless and the Fox-Jones case was only ever hearsay and means nowt to POPLA.  

But add this first part of your #5 (ONLY THIS BIT) to your final point and add the bit I've suggested:

The Initial Parking evidence shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question and from the lines and road layout shown around the car, this appears to be part of, or overlap with, the public highway and is not an image that identifies the vehicle as being within a private car park.  The operator is put to strict proof to identify exactly where the images were taken within the boundary of the enforcement area, including a valid and current site map from the landowner.

Have you first of all exhausted the landowner complaint BEFORE trying POPLA?

tkake

Le_Kirk said:

If this is a POPLA appeal, no links, just embed whatever it is you want to show.  POPLA assessors will not go chasing all over t'Internet following links.

Amended. Thank you.

Coupon-mad said:

Remove #5 as that's pointless and the Fox-Jones case was only ever hearsay and means nowt to POPLA.  

But add this first part of your #5 (ONLY THIS BIT) to your final point and add the bit I've suggested:

The Initial Parking evidence shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question and from the lines and road layout shown around the car, this appears to be part of, or overlap with, the public highway and is not an image that identifies the vehicle as being within a private car park.  The operator is put to strict proof to identify exactly where the images were taken within the boundary of the enforcement area, including a valid and current site map from the landowner.

Have you first of all exhausted the landowner complaint BEFORE trying POPLA?

Amended. Thank you CM.

I have emailed to multiple companies under Britanic Industries. I shall wait a couple of days for a reply.

tkake

Fruitcake said:

Have a look at this Fistral Beach thread that includes information in my post on 27/8/19 at 7.55 about the parking contract.

https://forums.moneysavingexpert.com/discussion/6027099/fistral-beach-newquay-inital-parking-please-help/p1

Just to hit the point home with POPLA.

Should I add a part in "no authority" quoting Companies Act 2006 section 44 Execution of documents. Along with an image of the contract found in the post from Fruitcake earlier?

Fruitcake

You only need to win on one point. The PPC has to win on every single point. The more points you make, the more the PPC has to counter. 

DarnPeskyPCN

What happened with this appeal? I see a lot of threads going through a lot of detail and back and fourth then thread dies.. Should be asked that people let others know what happened with their appeal... Info shared helps future cases.