Border Retail Park, Wrexham

Umkomaas

I have the email address of the person(s) responsible for the site and who any victims should contact to get a NTK cancelled

That's good to hear.  Did you get yours cancelled by this person?

Pharlapdog

Umkomaas said:

That's good to hear.  Did you get yours cancelled by this person?

No I didn't. If I am to help out others I need to see the contract between the site owner (Mayfair Capital Investment) and UKPC. I assume I'll get to see this at the POPLA appeal stage? If not then I'll have to wait for the court claim.

Coupon-mad

Yes, if you ask to see proof of landowner authority at POPLA stage, then UKPC have to provide it.

D_P_Dance

UKPC have form, have you read this

https://metro.co.uk/2021/10/18/surrey-writing-on-womans-jumper-landed-couple-with-fine-when-she-walked-in-bus-lane-15439916/

Pharlapdog

Coupon-mad said:

Yes, if you ask to see proof of landowner authority at POPLA stage, then UKPC have to provide it.

Just to be clear, If I ask for this in my appeal to POPLA, will I get to see UKPC's evidence even if my appeal is successful on another point? It occurs to me that POPLAs assessor might get to see the evidence but I don't?

Pharlapdog

Progress:

UKPC did not respond to my appeal with a POPLA code but instead sent me a letter inviting me to name the driver. This letter was ignored.

UKPC have finally sent me a appeal rejection letter with a POPLA code. UKPC claim I have 28 days to lodge an appeal. I thought it was 32? They also say I will be liable for an additional £70 charge if I don't pay the £100 and the matter is passed to their debt recovery agent.

On to drafting my POPLA appeal then! 

Umkomaas

While the official timescale for the appeal is 28 days, we know from experience that there's around 32/33 days available. But aim for 28 and you'll not be in danger of missing the deadline. 

Pharlapdog said:

Coupon-mad said:

Yes, if you ask to see proof of landowner authority at POPLA stage, then UKPC have to provide it.

Just to be clear, If I ask for this in my appeal to POPLA, will I get to see UKPC's evidence even if my appeal is successful on another point? It occurs to me that POPLAs assessor might get to see the evidence but I don't?

Anything that UKPC send to POPLA you will be able to view in order for you to respond to it.

They also say I will be liable for an additional £70 charge if I don't pay the £100 and the matter is passed to their debt recovery agent.

A Judge will tell you (and them) that you have no liability for trumped up extras, especially as the Govt have stated that their inclusion is nothing more than 'an attempt to extort money from motorists'!

Pharlapdog

Ok, I have my first draft of my POPLA appeal. There are 7 points of contention in total. This is probably more than I need for my appeal, but I wanted to provide as comprehensive a template as possible for other victims to pick at. If there are any other points I have missed, let me know.

Pharlapdog

[This appeal was partly adapted from Chrisk90's closed discussion thread entitled "Riverside Retail Park Chelmsford - PE POPLA" but updated for the latest BPA CoP.]

POPLA Ref XXXXXXXXXXXX

UK Parking Control Ltd.(UKPC) PCN no XXXXXXXXXXXX

A notice to keeper was issued on [DATE] and received by me, the registered keeper of [CAR REG] on [DATE] for an alleged contravention of parking terms and conditions at Border Retail Park, Wrexham, LL13 8NG. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1. No Evidence of Landowner Authority

2. No Evidence of Period Parked

3. Grace Period: BPA Code of Practice - non-compliance

4. Signs not prominent, clear or legible from all parking spaces. Inadequate notice of the parking charge

5. Invalid Notice to Keeper (NtK)

6. Time limits not exceeded

7. Time limits constitute an unfair term for Burger King customers

1. No evidence of Landowner Authority.

The operator is put to strict proof of full compliance with the British Parking Association (BPA) Code of Practice (current version 8 - January 2020)

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 or managing agent.

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 Code of Practice (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 version 8 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

2. 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. [I'm not sure if I should leave this bit in? It does not seem to apply to this case]

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;”

UKPC’s NtK simply claims the vehicle was 'present on site' at Border Retail Park, Wrexham from [DATE] [TIME] to [DATE] [TIME2] and that the vehicle was present during the 'no parking period between the hours of 08:00 PM and 07:00 AM'. 

At no stage do UKPC explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.

It is not in the gift of UKPC to substitute “entry/exit” or “presence on site” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, UKPC are not able to definitively state the period of parking.

I require UKPC to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.

3. Grace Period: BPA Code of Practice version 8 – non-compliance

The BPA’s Code of Practice states (13) that there are two grace periods: one at

the end (of a minimum of 10 minutes) and one at the start.

BPA’s Code of Practice (13.3) states that:

"Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN. 

7 years ago, on 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 (now 13.3) of the BPA Code of Practice to read 'a minimum of eleven minutes':

“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 (now 13.3) should be amended to reflect a mandatory 11 minute grace period.”

The recommendation reads:

“Reword Clause 13.4 to ‘If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 11 minutes.” Despite being agreed, this has not been incorporated into either version 7 (2018) or version 8 (2020) of the CoP.

UKPC have not applied the 10 (ten) minute grace period specified in BPA’s Code of Practice (13.3) and are therefore non-compliant.

Pharlapdog

4. Signs not prominent, clear or legible from all parking spaces. Inadequate notice of the parking charge.

The Protection of Freedoms Act (POFA) 2012 discusses the clarity that is needed 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''.

This is mirrored in the BPA CoP version 8 section 19.4:

If you intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give ’adequate notice’. This includes:

• specifying the sum payable for unauthorised parking

• adequately bringing the charges to the attention of drivers, and

• following any applicable government signage regulations. 

The signage at the site fails to comply with POFA 2012 or BPA CoP version 8 section 19.4 for the following reasons:

1) The entrance sign does not mention the parking charge at all.

2) The other signs specifying the terms and conditions have a minuscule font size specifying the £100 parking charge. This is illegible in most photographs. This 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.

The signs are unremarkable, not immediately obvious as to the parking terms and the wording is mostly illegible, there are approximately 500 words on their signs plus numbers etc. all being crowded and cluttered with a lack of white space as a background. Any information that could be deemed terms and conditions are muddled with information such as ‘ANPR in operation’ not making for clear reading what the terms are.

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.

I can confirm that the vehicle parked next to the bay labelled "E-ORDER BAY ONLY". From this bay the sign cannot be seen from the driver's seat because:

a) The sign is mounted high on a pole out of view of the driver.

b) The sign is angled at 90 degrees to the bay so cannot even be seen or read on approach to the bay.

A letter height of 12mm or less, 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, the driver 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.

I can confirm that the driver had none of these items to hand.

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 this appeal, 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.

Here is another example from a recent successful POPLA appeal (code 2410212396 15/03/2022) where the assessor Naomi Littler quotes: 

"Rather, I am going to consider the charge amount in the appellant’s case, as well as the signage. On this, I conclude the charge is not sufficiently brought to the attention of motorists on the signs and therefore it does not meet the expectations of ParkingEye v Beavis."

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 (at night when it was raining), 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.

5. Invalid NtK

UKPC’s NtK claims the vehicle was 'present on site' at Border Retail Park, Wrexham from [DATE] [TIME] to [DATE] [TIME2] and that the vehicle was present during the 'no parking period between the hours of 08:00 PM and 07:00 AM'. 

The NtK is in error in respect that there is not a 'no parking period between the hours of 08:00 PM and 07:00 AM', UKPC's signs specify a period of 30 minutes applies during these hours. The claimed infringement does not exist. Furthermore, since the vehicle entered the relevant land prior to 8pm, the 90 minute time limit applies. See point 6 below.

6. Time limits not exceeded.

UKPC's sign at the entrance states: "90 minutes maximum stay between 7am and 8pm, 30 minutes between 8pm and 7am".

Consider the situation where a vehicle enters the relevant land at 7:30pm how long is the driver allowed to 'stay' to avoid being sent a NtK/NtD?

1) Till 8pm? The allowed 90 minute stay expires at 8pm. The driver was not able to use it all, tough.

2) Till 8:30pm? The 90 minute stay expires at 8pm and the clock is reset to 30 minutes.

3) Till 8:40pm? Same as 2) above but with an added grace period to allow the driver to return to the vehicle and leave?

4) Till 9pm? The 90 minute clock does not get reset at 8pm.

5) Till 9:10pm? Same as 4) above but with an added grace period to allow the driver to return to the vehicle and leave?

6) Something else?

It is not possible to know from the inadequate signage.

Under the Consumer Rights Act ('CRA 2015') a Consumer is fundamentally entitled to rely upon the information as supplied by the trader, and any ambiguity must be interpreted in the way that most favours that consumer.

In this case, where the vehicle was recored at [TIME] entering the relevant land, clause 5) above is most favourable to the consumer and the time limit would be [TIME+90+10 minutes]. Since the vehicle was recorded leaving at [TIME2] there has been no infringement of time limits.

7. Time limits constitute an unfair term for Burger King customers.

The time limit of 30 minutes between 8pm and 10:30pm (when Burger King closes) is insufficient for legitimite customers. 30 minutes is not long enough even if using the drive-through during busy periods or if the driver parks up to consume their meal(s). If the driver and passengers sit down in the restaurant there is little chance of; parking up, reading the 500 word terms and conditions sign, entering the restaurant, choosing items off the menu, ordering, waiting for the food to be prepared, consuming the food, going to the toilet, returning to the driver's vehicle and leaving the car park.

The signs which impose a 30 minute time limit constitutes an unfair term under the Consumer Rights Act 2015 regulation 62(6):

"A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer."

UKPC's signs specify a 30 minute time limit after 8pm which is insufficient time for legitimate customers of Burger King to use the restaurant. The time limit is therefore an unfair term and not binding on the consumer.

I therefore request that POPLA uphold my appeal and cancel this PCN.