CUP Enforcement Popla Appeal 2021

rtx

Hello everyone, I have written a popla appeal that I was hoping you could help me with please.

Timeline so far is:

• 14/02/2021 - Contravention occured
• 23/02/2021 - Notice date
• 08/03/2021 - Appealed via Operator website using MSE template
  
• 17/03/2021 - Appeal rejected POPLA code received

I have attached images, these are their images, as I am appealing this on behalf of a relative I never took any pictures of the place myself.

The actual POPLA appeal write up:

Dear POPLA Adjudicator,

I am the registered keeper of vehicle [XXXXXXX]. And I am appealing a parking charge from CUP Enforcement.

I am appealing on the following points:

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

2. NTK does not meet POFA 2012 requirements

3. Evidence of Landowner Authority

4. Forbidding Signage

5. Breach of Consumer Contract Regulations 2013 and Ofcom regulations

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

Within POFA 2012 it discusses ‘adequate notice’, this is to make the driver aware of the parking charge. POFA defines ‘adequate notice’ as such:

“(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.”

The signage is insufficient, especially given that the font size of the “£100” is miniscule, and of almost if not the same size as the rest of the lettering on the signage. I have considered this against the requirements of BPA Code of Practice Section 18, and found them non compliant. There was no contract or agreement on the ‘parking charge’ at all. It is noted that the driver did not have a fair opportunity to read about any terms involving this huge sum.

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 a link to the ‘beavis case’ signage to serve as a comparison.

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 that specific car park in the Beavis case solely, a contract and 'agreement on the charge' existed.

In our case we have unremarkable signage, and they are not immediately clear or obvious as parking terms. The wording leaves much to be desired and is mostly illegible, 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. Considering this was an ANPR posted NTK with no ‘notice to driver’ left on the windscreen.

'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. Areas of the site are unsigned, and in this particular case the signage shown in the photo was on top of a garage, and it is assumed that it is only for that particular place in front of the garage. The vehicle was parked not in front of the garage, but adjacent to it, and in no way could be said to have been in front of or obstructing the garage. If we are to assume the signage was meant for that part only. As stated before the boundaries are not made clear.

Thus far it seems the ‘terms’ are displayed inadequately, and these signs would not be clearly visible from a parking space. I believe this case is not too dissimilar to POPLA decision 5960956830 on 2/6/2016 where the assessor Rochelle Merrit states:

“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.”

I would estimate the letters seem to be no larger than .39 font size going by this guide:
http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

This size is about half an inch, and when printed it is not as legible as it may be on a computer screen. No doubt the letters would appear smaller once printed and then mounted high onto a wall.

I would like to bring your attention to Lord Denning's Red Hand Rule:
“In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.”

Therefore the charge being out of all proportion with expectations of drivers at this site or any other site, and given the large nature of it, should have been highlighted more prominently, indeed there should have been a ‘red hand’ pointing to it.

A reasonable interpretation of the 'red hand rule' 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.

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.

The following judgment is binding case law from the Court of Appeal and is in support of 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. NTK does not meet POFA 2012 requirements

The operator has failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to give the invitation to keeper in the format prescribed by section 9 (2) (e) of the Act.

Furthermore, POFA 2012 Schedule 4 paragraph 9 refers 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.

3. Evidence of Landowner Authority

I request that the operator produce an unredacted copy of the contract they have with the landowner. As a proof that they were authorised to do what they do. Witness statements will not be enough of a proof, as these are often pre-signed and ready to go.

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.

4. Forbidding Signage

The signage in the car park is of a “forbidding” nature. It is limited to authorised vehicles or cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit or unauthorised 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. I refer you to the following case laws:

• 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.

A further point I would like to add is that the signs are vague in that they do not show any boundaries, as to where the restrictions begin or end, and it vaguely references “a multiple amount of spaces or area”. In fact from the images provided it looks as if the place the vehicle was parked was not applicable to any parking rules.

It also helps to note it is not stated what the ANPR data will be used for.

5. Breach of Consumer Contract Regulations 2013 and Ofcom regulations

Whilst I deny any contract has been formed, should they insist, the 0844 number breaches Regulation 41 of the Consumer Contracts Regulations 2013.

Furthermore, the 0844 number is also a breach of the parking industry Code of Practice. And CUP has claimed to be a part of the BPA.

Furthermore the omission of call costs from the sign breaches Ofcom regulations that took effect 1 July 2015.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed.

Yours faithfully,

[xxxxxxxx]

Coupon-mad

Was the first appeal the template, not naming the driver?

rtx

Coupon-mad said:

Was the first appeal the template, not naming the driver?

Yes definately! I used the Newbies thread template, and did not mention driver.

I appealed the whole thing as keeper of the vehicle.

Coupon-mad

Remove #2 (because that is a POFA NTK) and #5 (not a point that POPLA care about, at all).

miniscule

Typo above.  Check your spelling.

How many minutes between their first photo and their last, exactly?

What the heck was the person thinking of parking there...massive 'no parking' sprayed on the garage.  Having said that, the signs are 11 feet high and you could allege there is no entrance sign.  Don't show that close up of the sign in your appeal but do use their other photos,  Embed them into the document to illustrate what you are saying and say more specific stuff about the signs and how high they are, and that it looks like the ;no parking' message relates only to parking in front of the garage, which the driver did not. The sign was placed above the garage door which reinforces the belief that the sign (which is unreadable at that height) relates to not blocking the garage.  

Also, none of the listed 'breaches' actually happened.  Not blocking access, not obstructing anything, not blocking the garage door, and there is no permit scheme nor marked bays nor double yellows, nor any 'restricted area' so there was no contravention as listed on the signs.

rtx

Coupon-mad said:

Remove #2 (because that is a POFA NTK) and #5 (not a point that POPLA care about, at all).

miniscule

Typo above.  Check your spelling.

How many minutes between their first photo and their last, exactly?

What the heck was the person thinking of parking there...massive 'no parking' sprayed on the garage.  Having said that, the signs are 11 feet high and you could allege there is no entrance sign.  Don't show that close up of the sign in your appeal but do use their other photos,  Embed them into the document to illustrate what you are saying and say more specific stuff about the signs and how high they are, and that it looks like the ;no parking' message relates only to parking in front of the garage, which the drier did not. The sign was placed above the garage door which reinforces the belief that the sign (which is unreadable at that height) relates to not blocking the garage.  

Also, none of the listed 'breaches' actually happened.  Not blocking access, not obstructing anything, not blocking the garage door, and there is no permit scheme nor marked bays nor double yellows, nor any 'restricted area' so there was no contravention as listed on the signs.

Thank you for your continued help Coupon-mad. I will add your suggestions right now, just need to fit it in as you said.

Once again thank you for your swift reply Coupon-mad, I read elsewhere that the NTK wasn't POFA complient, and it looked exactly like mine, same company. Here is a link:

https://legalbeagles.info/forums/forum/legal-forums/motoring-parking/ppc-s-parking-charge-notices/1491982-c-u-p-enforcement-multiple-pcns?p=1492002#post1492002

EDIT:

The duration between the first photograph and the last is exactly 1 minute 27 seconds. I got the pictures from their site when I entered the PCN details, and there were only 6, but between the first and last its exactly that.

Was it a good idea to blur out the timestamps? I didn't want to be identified by them.

rtx

P.s. When you say embed images in the document, do you mean into a PDF and upload them? Or do they give room to do this on the site? My understanding was the code and appeal can be done once, hence I did not check it out until Im sure I know what I am going to post.

KeithP

rtx said:

P.s. When you say embed images in the document, do you mean into a PDF and upload them? Or do they give room to do this on the site? My understanding was the code and appeal can be done once, hence I did not check it out until Im sure I know what I am going to post.

Submit one pdf to PoPLA with all images imbedded in it at the appropriate place in the text.

Have you not seen the fully illustrated examples of PoPLA appeals linked from the third post of the NEWBIES thread?
Like this one - www.dropbox.com/s/p7ltb9rcr6zy7kn/Appeal_stage2_POPLA_ECP_draft5.pdf?dl=0

rtx

KeithP said:

rtx said:

P.s. When you say embed images in the document, do you mean into a PDF and upload them? Or do they give room to do this on the site? My understanding was the code and appeal can be done once, hence I did not check it out until Im sure I know what I am going to post.

Submit one pdf to PoPLA with all images imbedded in it at the appropriate place in the text.

Have you not seen the fully illustrated examples of PoPLA appeals linked from the third post of the NEWBIES thread?
Like this one - www.dropbox.com/s/p7ltb9rcr6zy7kn/Appeal_stage2_POPLA_ECP_draft5.pdf?dl=0

No I didn't see them

Thank you!

rtx

Okay, it took me ages, but I rewrote the whole thing. I've linked it on dropbox as a PDF,  because I can't get the formatting right on the MSE editor.

https://www.dropbox.com/s/ppyq4nea000ttdy/POPLA Draft 2.pdf?dl=0

Many thanks in advance! I'm still reading to see what else I can add.

Draft 2

Coupon-mad

Get rid of #5 because this is not an ANPR car park and the point won't win anyway.

You can obviously copy a grace periods POPLA appeal point.  Why do you think I asked the question about the minutes?  This is a major point.

rtx

Coupon-mad said:

Get rid of #5 because this is not an ANPR car park and the point won't win anyway.

You can obviously copy a grace periods POPLA appeal point.  Why do you think I asked the question about the minutes?  This is a major point.

Okay on it!, Draft 103 on the way, lol.

Thank you Coupon-mad