Update: CEL PCN, we won at POPLA! Thank you everyone!

KeithP

I think I would replace these words...

with something like...

Looking at the website www.starpark.co.uk, one finds at the bottom of the webpage...

Star Park Management - company number 06651610 - is listed at Companies House as 'Dissolved'.
Clearly there cannot have been any contract made between the driver and a dissolved company.

It might be a good idea to take a screenshot of that Starpark webpage before it disappears.

SayNoToPCN

Indeed, OP POPLA asssessors will not follow links. They just wont. Everything you want to show them, MUST be embedded in the appeal document you have created. No arguing on that point - it is factual

Even if they were to follow links, you cannot g'tere that their web filter will let them see the site, because you did not set their filters up...!

creek48

KeithP said:

I think I would replace these words...

with something like...

Looking at the website www.starpark.co.uk, one finds at the bottom of the webpage...

Star Park Management - company number 06651610 - is listed at Companies House as 'Dissolved'.
Clearly there cannot have been any contract made between the driver and a dissolved company.

It might be a good idea to take a screenshot of that Starpark webpage before it disappears.

Thank you so much for this. This way is indeed much better. I have just adapted it in my draft 2.

creek48

Coupon-mad said:

Companies House.

I know you went to town on the signage but I struggled to find where you say something like:

the signs don't have the parking charge of £100 on them.  Alternatively, if (and I am guessing) the £100 is hidden in the minuscule t&cs wording, among the GDPR data info, then it is simply impossible to pick out - see photos - POPLA Assessor, please ask yourself, where is the £100 contractual sum and terms?  At no point can a driver learn about that risk, the terms, the breaches that cause a penalty to arise or what that sum might be.

Thank you for your advice on this. I have reflected your comments in my point #2 now (I highlight the comment text in bold). Could you kindly have a look and let me know if it's good?

2. The entrance signs are inadequately positioned, and 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.

There are also further reasons proving 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. 

Figure 1 and 2 shows the 'Beavis case' sign as a comparison to the signs under dispute in this case.

Figure 1 shows that even in the close-up photo sent by the operator themselves, the signs at 237-259 Greenwich High Road don't have the parking charge of £100 on them.  Alternatively, if (and I am guessing) the £100 is hidden in the minuscule terms and condition wording, among the General Data Protection Regulation information, then it is simply impossible to pick out - see Figure 1 - POPLA Assessor, please ask yourself, where is the £100 contractual sum and terms?  At no point can a driver learn about that risk, the terms, the breaches that cause a penalty to arise or what that sum might be.

Thus, this case, by comparison to the 'Beavis case', 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. 

Figure 2: Beavis sign

Furthermore, in Figure 1, the signs are sporadically and sparsely placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being printed in a faded light colour with a lack of contrast to the white background. 

It is indisputable that printing letters in an unremarkable light colour and making letters too tiny 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. 

Civil Enforcement Ltd’ main car park sign on the 237-259 Greenwich High Road site (the only one in the car park displaying terms and conditions) is inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read. 

Figure 3: 237-259 Greenwich High Road - car park sign 

Figure 3 shows a wider angle view of the same main car park sign, giving some context to the size/location of the sign shown in Figure 1. Figure 3 shows clear evidence that the font size and colour for the terms and conditions wording making it illegible (without a torch and magnifying glass) to read from where a person would be standing. 

Figure 1 and Figure 3 clearly show that Civil Enforcement Ltd signage does not comply with the BPA Code of Practice (section 19.3, version 8 - January 2020), specifically: 

 “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

The section for terms and condition is in the tiny text that is impossible to read. Furthermore, light colour text on a white background is difficult to read. Indeed, in relation to design principles, it is widely known that colour contrast plays a key role in terms of accessibility as it “affects some people’s ability to perceive information (in other words to be able to receive the information visually).” (Government Digital Service, 17 June 2016). Whilst this web page discusses design principles in relation to web design, the same points are true of print-based materials which would include signage. Why is something so important so small and illegible? - once again, not “easy to see, read and understand”. 

Areas of this site are unsigned and there are no full terms displayed clearly indicating non-compliance with the BPA Code of Practice (section 19.3 in version 8 January 2020) which states:

“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.”

Recently (September 2017) a not dissimilar POPLA appeal versus Euro Car Parks (car park: Kay Street, Bolton) was successful as the Assessor was not satisfied that adequate signage was placed throughout the site and therefore compliant with section 19.3 of the BPA Code of Practice. 

Very recently (October 2020) here was not a dissimilar PoPLA Appeal versus One Parking Solution was successful as the assessor was of the view that the signage at the site is not sufficient to bring the parking charge to the attention of the motorist and therefore compliant with section 19.3 of the BPA Code of Practice. 

It cannot be reasonably assumed that a driver drove past and could read a legible sign, observed one upon entrance to the car park, nor parked near one.

Figure 4: Google map image - road approach to the car park indicating lack of signage

Figure 4 shows the approach to the car park in an image taken from Google map as per the location for which the PCN has been issued. The car park is located to the left of the road. Follow the road; where there is a tree is the entrance to the car park (see close-up in Figure 5 below). This image clearly shows no signage on the approach to the car park itself.

Figure 5: Car park entrance at which vehicle approaches - the opposite angle to Figure 4

Figure 5 shows the car park entrance from the opposite angle to Figure 4. Again, this image clearly shows no signage on the approach to the car park itself from also the other direction.

Figure 6: Car park entrance from directly opposite 

Figure 6 shows the car park entrance from directly opposite the entrance. 

The BPA Code of Practice (Appendix B, page 31, version 8 - January 2020) sets the requirements for entrance signs. Following further research (on foot, during daylight), what is disputed are other requirements the BPA sets in Appendix B, specifically: 

1. The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. 

In disputing point 1 above, the relevant entrance sign in this appeal case is not readable by drivers without their need to look away from the road ahead (it’s not even visible).  Specifically, I will discuss that the direction the sign faces in relation to approaching traffic is a key factor in establishing non-compliance with the BPA CoP (Appendix ;

The sign is angled so as to look directly out from the car park, pointing at 90 degrees from any approaching traffic, as shown in Figure 7 below. 

Figure 7: Angle of entrance sign in relation to approaching traffic 

Given this car park is accessed from a busy street, would it not be sensible to angle all entrance signage towards oncoming traffic? Also, when discussing entrance signs, the BPA CoP (Appendix suggests a typical approach speed of 15mph to enter a car park by immediately turning off a 30mph road. Taking figures 4, 5 and 6 into account and based on the angle of the entrance sign in relation to the approach road as illustrated in figure 7, it is clear that the entrance sign to the 237-259 Greenwich High Road car park is wholly inadequate. 

Performing some simple calculations seeks only to reinforce the point that the entrance signs are non-compliant and invisible to a driver approaching. Take the length of the vehicle identified on the PCN, a Ford Focus (4.378m) and the approach speed of 10mph (the approaching road is a 20mph road and BPA’s suggested 15mph for a 30mph road). With an entrance sign positioned less than one car length from the approach road as is the case here, travelling at 10mph the vehicle would be past the entrance sign in less than a second.

creek48

Moving on from the non-compliant entrance signs, I, the keeper, wish to share one further image that clearly illustrates the inadequate signage at the 237-259 Greenwich High Road car park. 

Figure 8: Lack of visible signage from where the vehicle was situated

Figure 8 was taken in the same conditions as per the occasion for which the PCN has been issued. In addition to some visual obstacles caused by on-going construction, this provides clear evidence as to the lack of legible or even visible signage from where the vehicle was situated.

It is therefore suggested once again that Figures 4, 5 and 8 serve to reinforce the earlier point made (in relation to Figures 2 and 3) regarding non-compliance with the BPA Code of Practice (section 19.3, version 8 - January 2020) , specifically: 

“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” 

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, the signs in the 237-259 Greenwich High Road car park do not clearly mention the parking charge which is hidden in small print (and does not feature at all on all but one of the signs within the car park site). Large 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 a font of 10 point size (0.14 inch) 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.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''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.

In addition, the BPA Code of Practice (section 19.1, version 8 - January 2020)  clearly states that: 

“A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.” 

Bearing this paragraph in mind, there was categorically no contract established between the driver and Civil Enforcement Ltd. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. 

Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. 

When the driver arrived at the car park it was impossible to read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located (too high, on the passenger side of the vehicle, not visible from the driver's side), angle of the entrance sign in relation to approaching traffic is invisible to the driver (particularly from a moving vehicle entering the car park from a busy road), and the terms and conditions illegible. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge. 

Coupon-mad

Looks good.

Le_Kirk

Coupon-mad said:

Looks good.

Except you need to embed the detail from the links, rather expect the POPLA assessors to go searching all over t'Internet for them.

creek48

Le_Kirk said:

Coupon-mad said:

Looks good.

Except you need to embed the detail from the links, rather expect the POPLA assessors to go searching all over t'Internet for them.

Yes, great advice. I will try to add some screenshot for embed details. Thank you!

creek48

Coupon-mad said:

Looks good.

Thanks for the comments.

So currently I only have four points for my whole appeal. Would you say they are sufficient? Once I added to embed the detail from the links as Le_Kirk  suggested, do you think the appeal is good to send off?

1. The sign supposedly offering a contract (which is denied) is in the name of the company "Starpark" (a website is not a company name), which is a different entity to the Operator Civil Enforcement Ltd. The Operator is a stranger to any alleged contract with Starpark
2. The entrance signs are inadequately positioned, and 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
4. Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

creek48

The date on the appeal rejection letter from CEL is dated 15 March. So after adding 28 days, I think I should submit this soon.