Walsall McDonald's Wisemore Ocean Parking

Stefano123

Fruitcake said:

Show us the redacted NTK anyway. The driver can be named at any time up until a court claim has been issued, so I would keep that in the back pocket for now and appeal to PoPLA as keeper, but obviously only if you feel that is the best option.

This was going to be my question but you beat me to it. When I won in court I only revealed this at that stage.

Stefano123

Fruitcake said:

Does the vehicle have a "black box" fitted, or GPS, or did the driver or passenger have a smart 'phone with location tracking enabled?

No, unfortunately, if they had have had a phone capable of doing that they could have downloaded Ring Go to pay. There is NO machine on site to take payment. The only method offered is via an app.  

KeithP

Stefano123 said:

Fruitcake said:

Does the vehicle have a "black box" fitted, or GPS, or did the driver or passenger have a smart 'phone with location tracking enabled?

No, unfortunately, if they had have had a phone capable of doing that they could have downloaded Ring Go to pay. There is NO machine on site to take payment. The only method offered is via an app.  

If they didn't have a phone capable of using RingGo - did they? - then it was not possible for anyone to enter a contract.
I believe void for impossibility is the phrase.

KeithP

Stefano123 said:

Fruitcake said:

If the driver has not been named, then the keeper is liable and it is they who must appeal to PoPLA unless they transfer liability to the driver by telling the PPC who that is.
This should only be done if the driver is better placed to deal with this than the keeper.

The keeper really should be the one posting here otherwise the advice given here will get lost in translation if we have to go through an uninvolved third party.

Plan A is always to complain to the landowner and McD's manager and/or CEO, and the keeper's MP.

If that fails, then all the points available from the third post of the NEWBIES should be used to create a PoPLA appeal. The draft should be shown here for checking before it is submitted.
If the keeper isn't sure if the NTK is or isn't PoFA complaint, they should post a redacted version here for the regulars to check. Leave all dates and location showing but redact personal information.

Get photos of the site and signage in readiness for a PoPLA appeal if Plan A fails.

You're making the assumption that the registered keeper and the driver (a) have an internet connection and (b) are able to read and write. Two men in their 70s who are been labourers all their life have neither of these things.  I am doing this on their behalf because these people are both vulnerable people who do not have the confidence nor written skills to defend themselves. 

I wonder how two people who couldn't read should be expected to read the notoriously complicated Terms and Conditions on a parking sign?

And I mean it as no criticism of anyone, but it would probably take a good English reader all of those fifteen minutes to read and understand the sign before any queuing time is even considered.

Hint for next time: it looks to be two hours free parking at Tesco across the road?  
Looks like there is a steady stream of McD's customers treading that route too. I count at least nine people here in this one image. One even has a McD's cup in his hand...
https://goo.gl/maps/5GGFxDqBd7BUiiBa8

Stefano123

There was only one person in the car at that time as genuinely, the registered keeper was not the driver. The driver isn't completely illiterate and understood enough to suspect T&Cs had changed, hence trying to ring the helpline, but the detail of which is completely lost on him.

The Tesco's is only free as long as a purchase is made in store unless its changed I think but good thinking.

The alternative is go in store AND ASK for the tablet to input details but this is kept hidden behind the desk.   

KeithP

Ah, yes. A £5 minimum spend is required for a two hour stay at Tesco...

Stefano123

POPLA APPEAL DRAFT. ANY FEEDBACK WELCOME. THANKS!!

1.     I am the registered keeper of the vehicle in question.

2.     The matters referred to in this appeal statement are within my own knowledge, except where stated otherwise.

3.     I am appealing PCN XXXXXX as the Registered Keeper of the vehicle. No admission is being made throughout as to whom the driver was on the day in question and no assumptions can be drawn. 

4.     On XXXX, the driver of the vehicle on that day entered land on which McDonald’s Walsall Wisemore stands. The driver encountered completely insufficient signage at the entrance to the car park and also along the route they took to join the drive-through queue. 

5.     On the day in question the drive-through queue was very busy, and the driver estimates it took them around 15 minutes from entering the car park and joining the queue to receiving their food and finally stopping the vehicle in a designated bay. 

6.     Having also seen no signs whilst in the drive-through queue and having not been told by McDonald’s staff that the carpark had reduced its free grace period to 20 minutes, the driver parked to eat their meal.  On the driver’s only previous visit to the site, 1 hour parking was permitted. 

7.     If Ocean Parking’s ANPR machine is correct, the driver left the carpark 33 minutes after it entered the carpark. 

8.     As the registered keeper, I refute any charges on the following grounds:

A contract between the driver and Ocean Parking never existed due to uncompliant signage and unclear terms and conditions.

9.     The lack of clear signage at the entrance to the car park and around the carpark means the “landholder [cannot prove] a contract to park existed between the driver and the landholder” (POFA 2012, 6.3). 

 10.  The terms and conditions at this site have changed numerous times and therefore Ocean Parking are in contravention of BPA Code of Practice: 

19.10 “Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/ temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones”. 

11.  There is completely insufficient signage in place at the entrance to the car park, and indeed around the carpark and therefore this appeal must be allowed on this basis. 

 12.  Moreover, 33 minutes is the total time spent on site and thus the circa 15 minutes spent entering the carpark, joining the drive-through queue, ordering, paying, and waiting for food cannot be considered in whole or in part as being constitutive of the actual ‘parking event’. Any attempt to suggest otherwise is clearly an attempt to impose an unfair term.

13.  Furthermore, Ocean Parking’s signage at the site merely states, in uncompliant and tiny text, “duration of stay calculated by ANPR cameras from the point of entry to the point of exit’. This is merely a nebulous statement with no clear explanation as to what it means. Even if the driver had seen the sign earlier, the text clear stops short of explaining to the site user vital and reasonable information about the contract that (a) Ocean Parking consider a ‘parking event’ to have occurred, not in the everyday and ordinary sense of the term, i.e., by parking a vehicle in a bay and stopping stationary, but merely by entering onto the land; and (b) “Parking Tariffs” ought to actually be interpreted as tariffs, not for parking, but, for time spent on site. To this end, attempting to suggest a contract has been formed between the driver and Ocean Parking for “parking”, at a site on which a drive-through is located, is not only uncompliant but is evidence of breaches of the BPA code of practice. I make this argument further below. 

14.  The BPA Code of Practice clearly states that:

18.1 “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.

15.  Baring this paragraph in mind, there was categorically no contract established between the driver and Ocean Parking 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 in the hours of dusk and therefore impossible to a 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 and the terms and conditions illegible.

16.  As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this 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

 17.  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 and poorly placed – particularly to a driver entering the site – with no lighting. In fact, some signs are obscured and hidden in some areas with large areas of the car park without visible signs. The signs 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. In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

18.  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 the majority 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.

19.  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 operator’s 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.''

20.  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.

21.  The letters seem to be no larger than .40 font size going by this guide: http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

22.  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.”

23.  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.

24.  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.

 

25.  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 an example of a binding case law from the Court of Appeal offers further supports my argument: http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

26.  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 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.

27.  Based on these points, it is believed that Ocean Parking Ltd. are not complying with the BPA Code of Practice regarding position, clarity of terms and conditions and driver safety. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, request that Ocean Parking Ltd. be required to provide strict proof of exactly where the car was parked (from photos taken in the same lighting conditions) and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date, time and lighting condition of the alleged event. I submit that full terms simply cannot be read safely 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 to this, it is requested that any neighbouring signs to the entrance and vehicle parking location to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted or the driver misinformed.

The PCN has been issued outside of Protection of Freedoms Act 2012 and therefore is unenforceable. 

28.  Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 only requires the registered keeper to tell the driver and give the notice to them. Thus, there is no statutory power that forces the registered keeper to give the name and address of the driver. 

29.  The law only gives the parking company the power to invite the registered keeper to give the name and address of the driver (see Regulation 9(2)(e) of Schedule 4 of the Protection of Freedoms Act 2012). I put Ocean Parking to strict proof that the registered keeper of the vehicle was the driver at the time in question or evidence they have followed the schedule in the PoFA2012 to transfer liability to the registered keeper.

Stefano123

The driver was unable to make payment via RingGo and the helpline was unresponsive.

30.  While getting out of the car for the first time and taking their leftovers to the bin, after spending circa 30 minutes on site, but only 12-15 minutes parked, the driver first noticed a sign and the fresh terms and conditions.

31.  Given there was no ticket machine and given they did not have a mobile phone capable of downloading RingGo to make payment, the driver rang the helpline. No one answered. At that point the driver left the car park immediately having only actually spent circa 15 minutes parked at the site. 

32.  The claim therefore be deemed void for impossibility. 

33.  To this end the contract is therefore frustrated and void. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms. The defendant avers that they not only made reasonable efforts to pay, by attempting the helpline, they exceeded reasonable endeavours. 

Ocean Parking lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

34.  It is suggested that Ocean Parking Ltd. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that Ocean Parking Ltd. be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

35.  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

Coupon-mad

I see no rationale as to why you say the NTK was non POFA. Either it is or it isn't but that depends on the wording on the NTK and/or the date it was served. And if you are right that it is non-POFA (is it?) then you must spell out the omissions in wording and/or the dates to POPLA. 

And you signage stuff is good, except the driver DIDN'T encounter signage so don't put this!

 "The driver encountered completely insufficient signage ."

1505grandad

Is the ppc APCOA (sign posted previously has this name). 

If so who are Ocean Parking?

I am still unclear as to whether the driver has been named to the ppc (see first post). In which case POFA is not valid.