Horizon Parking - Fishergate Centre - Failure to Pay for Full Duration of Stay

pcnnw2022

Hi all,

I received a PCN from Horizon Parking this Monday just gone, 7th November:

Front i.imgur.com/EsRPS1p.jpg
Back i.imgur.com/mWKpcAp.jpg

It's dated as issued October 31st but wasn't received until the following week, 16 days after the parking event mentioned. It's demanding a £70 penalty reduced to £42 if paid within 14 days.

I submitted an appeal to Horizon per templates found on here:

Dear Sirs,

I have just received your Notice to Keeper xxxxx for vehicle VRM xxxx

You have failed to comply with the requirements of Schedule 4 of The Protection of Freedoms Act 2012 namely, but not limited to, failing to give notice of keeper liability as prescribed by section 9 (2) (f) of the Act. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

There is no legal requirement to name the driver at the time and I will not be doing so.

I do not expect to hear from you again, or your debt collectors, except to confirm that no further action will be taken on this matter and my personal details have been removed from your records.

This was rejected, with a reply that doesn't seem to refer to my appeal at all:

Parking Charge Notice Reference <ref>
Vehicle Registration Number <reg>
Breach of Terms and Conditions Failure to Pay for Full Duration of Stay
Date and Time of Breach 22nd October 202209:39 AM
Location Name Fishergate Centre Preston - LPS/POE - DMEA
POPLA Code <code>
Date of this Correspondence 10th November 2022

10th November 2022

Dear Appellant,

Parking Charge Notice:<ref>

Thank you for your recent correspondence concerning the above referenced Parking Charge Notice.

Review of your Appeal

The Parking Charge Notice was issued lawfully and in full and proper accordance with the Code of Practice issued by the British Parking Association (the ‘BPA’).

There are signs located at the entrance to, and within the car park that state the terms and conditions that apply when parking.

As clearly stipulated on signage within the car park, payment for parking must be made for the full duration of the vehicles stay. Our systems do not show any evidence of payment made against this vehicle on the incident date.

The signs throughout the car park are clear and comply fully with the BPA’s prescribed rules and regulations. When parking on private land, it is the driver’s responsibility to ensure they adhere to the terms and conditions of the car park concerned.

The mitigating circumstances detailed in your representations, whilst unfortunate, cannot be considered valid grounds for appeal.

Given the above, and whilst we have considered your representations carefully, on this occasion your appeal has been rejected although please see the paragraph below regarding further evidence, receipt of which may enable us to review your case further.

Further Evidence

Although we have rejected your appeal, we would be happy to review the status of your appeal should supporting evidence such as receipts to prove you were using the facilities and to justify your length of stay within this car par be provided.

To submit the requested evidence, you can do so by re submitting the appeal form available on our website; www.horizonparking.co.uk or write to us at Horizon Parking Ltd, Finitor House, 2 Hanbury Road, Chelmsford CM1 3AE.

Until we receive this important evidence, please be advised that the Notice will remain outstanding; however in good faith we will hold the current charge rate of the Notice for an additional 14 calendar days to allow you sufficient time to compile and send the information we require. Once received, we will review the matter further and respond to you accordingly.

We look forward to receiving the above information so we may further consider the Notice for you. Please be aware that Horizon must reserve its rights to pursue the Notice if the evidence requested is not received within the next 14 calendar days.

The Charge Amount and Methods of Payment

In good faith, Horizon will hold the charge at the current amount of £42.00 for a further 14 days from the date of this correspondence to allow you further time to pay.

Payment of the outstanding charge can be made using our 24-hour payment line: 020 8106 0789 or online at <redacted>

Alternatively, payment can be made via cheque made payable to Horizon Parking Ltd and posted to Horizon Parking Ltd, Finitor House, 2 Hanbury Road Chelmsford, Essex CM1 3AE

Additional Types of Appeal

You have now reached the end of our appeals procedure. Although we have rejected your appeal, the Parking On Private Land Appeals (POPLA) provides an independent appeals service. To use this service, you must appeal to POPLA within 28 days of the date of this correspondence.

For full instructions of how to appeal to POPLA, please visit their website at www.popla.co.uk. If you would rather progress this matter by post, please contact our Appeals Office and we will send you the necessary paperwork.

Your POPLA reference number is <code>

Please be advised that if you elect for independent arbitration of your case, you will be required to pay the charge at the full amount and as such will no longer qualify for payment at the reduced rate. Please also be advised that POPLA will not accept an appeal where payment is made against the Parking Charge Notice in question.

We are required by law to inform you that Ombudsman Services (www.ombudsman-services.org/) provides an alternative dispute resolution service that would be competent to deal with your appeal; however , Horizon has not chosen to participate in their alternative dispute resolution service. As such, should you wish to appeal then you must do so to POPLA as explained above.

At this stage, I think I need to make the same defence to POPLA, so I put together the following:

POPLA reference number xxxxxxxxxxxxx
Horizon Parking PCN no xxxxxxxxxxx

As the registered keeper, this is an appeal against the Parking Charge Notice issued by Horizon Parking for an alleged breach of the company's terms and conditions in Fishergate Centre Preston car park, on 22nd October 2022, with stated duration of stay 47 minutes.

For the avoidance of doubt, the driver’s identity has not been provided and this appeal remains purely from the registered keeper.

Summary of appeal:

1. Non-compliance with PoFA 2012
2. No evidence of ownership or legal basis to form contracts to charge for parking

1) The PCN sent to me by Horizon Parking was delivered by post using ANPR and a subsequent request to the DVLA for Registered Keeper details. No notice was given at the time of the alleged contravention. As such, the notice should conform to Schedule 4 of the Protection of Freedoms Act 2012. I would draw particular notice to paragraph 9 (2 (f))

(2)The notice must—

(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii) the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

The notice from Horizon Parking does not meet this requirement by stating what action will be applicable if the creditor does not know the name and address of the driver.

The notice also does not state the period of parking in the car park. The time that a vehicle is in the car park between the time of the entry and exit photographs will rarely correlate with a time period of being parked. It is entirely feasible that a driver may spend significant time loading/unloading, helping with assisted boarding/alighting and/or locating a parking space.

In addition, the notice was stated as issued October 31st, but only received November 7th, 16 days after the date the notice relates to.

2) 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.

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 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 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

In light of these points, I request POPLA to uphold my appeal and cancel this PCN.

Sincerely,
<name>

Have I missed anything or gotten anything wrong here? Thanks in advance for any advice you can offer!

Grizebeck

Looks good !

Fruitcake

Your images made live.

EsRPS1p.jpg (3072×4080) (imgur.com)

mWKpcAp.jpg (3072×4080) (imgur.com)

You have done well. Whilst you should win at PoPLA with your Non PoFA compliant point, it wouldn't hurt to add all the template points from the third post of the NEWBIES as well.

Grizebeck

I am surprised they rejected your appeal as its non pofa and normally Horizon simply cancel tickets

Coupon-mad

I didn't see it (forgive me if I missed it) but I would specifically quote their wording that says 'we have the right to recover from THE DRIVER' (not the keeper).

pcnnw2022

Fruitcake said:

Your images made live.

<removed quoted links since I can't even re-post them apparently>

You have done well. Whilst you should win at PoPLA with your Non PoFA compliant point, it wouldn't hurt to add all the template points from the third post of the NEWBIES as well.

Thanks! I looked through those but the only possibly relevant one seemed to be landowner authority. Signage is tricky because all of the street view imagery is way too old - the car park changed operators ~2-3 years ago and street view still shows the older images. Even if it didn't, the car park is kinda closed off and all the signs face inwards to the car park itself.

There was no windscreen ticket and it isn't a permit car park, so the other two points didn't seem to apply.Coupon-mad said:

I didn't see it (forgive me if I missed it) but I would specifically quote their wording that says 'we have the right to recover from THE DRIVER' (not the keeper).

Thanks for taking a look! I've added it, it wasn't clearly stated in my appeal, I changed:

The notice from Horizon Parking does not meet this requirement by stating what action will be applicable if the creditor does not know the name and address of the driver.

to

The notice from Horizon Parking does not meet this requirement by stating what action will be applicable if the creditor does not know the name and address of the driver: it only claims that Horizon "have the right to recover the outstanding charge from the driver". If the driver cannot be identified, Horizon have no authority to pursue the keeper since the conditions of PoFA 2012 have not been met.

Does this look okay to submit at this point?

Coupon-mad

Much better.

BUT you must add the signage template point as well as landowner authority.

pcnnw2022

Coupon-mad said:

Much better.

BUT you must add the signage template point as well as landowner authority.

Thanks! I went to the car park over the weekend to take a look at the signage. It is indeed, pretty awful. If you enter via the rear underground entrance, you'd see only two signs. The first is at a busy road junction and about 12-14ft off the ground, almost exclusively in tiny font. It makes no mention of the parking charge. The second is by what was previously an entrance barrier, is a little larger than A4 in size, still has fairly tiny fonts and _also_ still doesn't mention a parking charge.

There's one small sign at the exit that just says "Have you paid for your parking? If not, visit horizonspaces.co.uk to make payment within 24 hours of leaving to avoid a PCN". And that's all you'd see...

There's other signs high up on lighting poles around the car park that do mention a charge, but you could very easily park nowhere near one of them and enter and exit having never seen one!

I've amended my appeal to contain the section re signage with some minor tweaks:

POPLA reference number xxxxxxxxxxxxx

Horizon Parking PCN no xxxxxxxxxxx

As the registered keeper, this is an appeal against the Parking Charge Notice issued by Horizon Parking for an alleged breach of the company's terms and conditions in Fishergate Centre Preston car park, on 22nd October 2022, with stated duration of stay 47 minutes.

For the avoidance of doubt, the driver’s identity has not been provided and this appeal remains purely from the registered keeper.

Summary of appeal:

1. Non-compliance with PoFA 2012

2. No evidence of ownership or legal basis to form contracts to charge for parking

3. 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

1) The PCN sent to me by Horizon Parking was delivered by post using ANPR and a subsequent request to the DVLA for Registered Keeper details. No notice was given at the time of the alleged contravention. As such, the notice should conform to Schedule 4 of the Protection of Freedoms Act 2012. I would draw particular notice to paragraph 9 (2 (f))

  (2)The notice must—

  (f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

  (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

  (ii) the creditor does not know both the name of the driver and a current address for service for the driver,

  the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

The notice from Horizon Parking does not meet this requirement by stating what action will be applicable if the creditor does not know the name and address of the driver: it only claims that Horizon "have the right to recover the outstanding charge from the driver". If the driver cannot be identified, Horizon have no authority to pursue the keeper since the conditions of PoFA 2012 have not been met.

The notice also does not state the period of parking in the car park. The time that a vehicle is in the car park between the time of the entry and exit photographs will rarely correlate with a time period of being parked. It is entirely feasible that a driver may spend significant time loading/unloading, helping with assisted boarding/alighting and/or locating a parking space.

In addition, the notice was stated as issued October 31st, but only received November 7th, 16 days after the date the notice relates to.

2) 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.

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 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 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

3) 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 - where neither of the two signs a motorist entering via the rear entrance and leaving via the main exit would see mention the parking charge at all - 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:

<link>

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:

<link>

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.

The letters seem to be no larger than .40 font size going by this guide:

<link>

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

<link>

''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:

<link>

''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:

<link>

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 light of these points, I request POPLA to uphold my appeal and cancel this PCN.

Sincerely,

<name>

If I have photos of the signage, should I post them here and/or include them in the appeal? I considered not, since it puts the onus on the PPC to provide evidence that the signage is sufficient, but I'm not sure if proving yourself that it isn't (if you can) is better.

pcnnw2022

Oh also, should the images mentioned be inlined in to a Google Doc then saved to PDF to submit too?

Le_Kirk

Images should be embedded in the document to save the POPLA assessor chasing all over t'Internet looking for them, something which they will not do!

Umkomaas

Make sure the photos are date and time stamped, otherwise POPLA will disregard them, and will often accept PPC stock photos of their signs. Get one step ahead.