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Middleway retail park burton Smart Parking

After some helpful information from this forum I've just been told my appeal to POPLA has been withdrawn by the parking company and parking ticket cancelled. Thought I would post on here in case anyone else has the same problem as me being landed with a ticket for overstaying the free period by 10minutes and a few seconds despite being a paying customer of the businesses on site with receipts to prove. My appeal to the parking company was rejected of course but at POPLA they withdrew. Appeal text below:

On the date and time of the PCN I was a customer of a business on site. I have receipts from the day to prove this.  

The PCN states an overstay of just over 10 minutes occurred, which I believe is unfair as an adequate minimum grace period was not allowed by the operator. 

I am therefore appealing and holding the operator to strict liability on the following grounds:

Ground 1. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

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. Paragraph 7 of the BPA Code defines the mandatory requirements for this 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

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 restrictions which only 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.

Ground 2. The minimum grace periods was not allowed by the operator

The charge of £100 that was demanded for overstaying by less than 11 minutes is unreasonable as the British Parking Association code of practice (BPA CoP) states:
“13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.”

The operator has not considered appropriate grace and observation periods at the beginning and end of the stay. This is particularly important considering:
- The size of the car park and the number of businesses and customers on site at busy periods such as this on weekends, with cars queuing on the adjacent road upon exit
- The inadequate signage and display of terms and conditions, presented in a fragmented way on signs inconsistently displayed around the site

More details on how to apply the requirements of the Code of Practice on grace periods was given by Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains. “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

So the BPA believes that 5-10 minutes period is acceptable depending upon various factors and then a MINIMUM of another ten minutes must be allowed at the end. The Signage on entry to the Retail Park is not clear detailing the grace period, when the parking period begins and its parking charges. Therefore the alleged overstay of 16 minutes falls well within the limits of an appropriate grace period and the Parking Charge Notice should be discounted on that basis.

Ground 3 – The handling of the Parking Charge Notice non-compliant and the response to the subsequent appeal contains different terms to that contained on signs.

In their response to my appeal Smart Parking referred to different terms. I can only presume this to be an error but if the operator is confused by their site terms and conditions what chance do genuine customers have.

Smart Parking have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, the Notice to Keeper must meet the strict requirements and timetable set out in the Schedule 4 paragraph 9 of the Protection of Freedoms Act which stipulates the mandatory information that must be included in the Notice to Keeper. The following is entirely missing from the PCN issued by Smart Parking, therefore making the PCN non-compliant with the requirements for being considered to be a Notice to Keeper:

-        “the period of parking to which the notice relates”: the PCN only mentions recorded alleged entry and exit times, not the period of parking.

-        “inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;”: the PCN does not inform the keeper that the driver is required to pay parking charges. The PCN only states that “A parking charge notice of £100 is now due for payment”. It does not inform the keeper of its responsibilities or that of the driver.

Ground 4 - Signage at the site is not clear or conspicuous for the following reasons as required by the BPA and set out by the courts in case law. 

The entrance sign required by the BPA code of conduct is not clearly visible as it is placed on a metal pole several meters away from the entrance and the car park attendants cabin on a grass verge next to the pavement. It is also largely covered up by bushes/trees which can be seen in the photo attached and on google maps.

There are no terms and conditions signs at the front of the car park. There are however very small terms and condition signs next to payment machines to which are of very small font. There are numerous trees within the car park, resulting in car park related signage being obscured particularly easily as in this case at night.

The BPA code specifically states under paragraph 19.3 that “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” As can be seen in the attached photos and on google maps the font size used for the penalty charge sum is 1inch tall and the font size used for the parking violation scenarios less than half that. Neither sizes even from a short distance are easy to read as can be seen in the photos attached. Printing companies recommend “the proper sign and banner font size is to make them at least one inch (72 pt.) tall for every 10 feet of viewing distance.”

In the Parking Eye v Beavis court case the signs were seen as clear with an £85 charge in the largest font size and a contrasting colour background. There were similar 'large lettering' signs at the entrance and all around the car park too.

The signs displayed by Smart Parking at Middleway Retail Park fail on several counts:

-        At least 6 different types of signage, including instructions at the payment machine, are displayed around site. Each sign provides different information to drivers who cannot reasonably be expected to walk around the parking to ensure that they have identified each and every sign and read and understood the terms written on each type (see photos attached and google maps). The fragmented presentation of important information and of terms and conditions means that drivers are bound to miss or misunderstand some of the information, which negates the argument that the driver had entered in a contract with Smart Parking based on its terms and conditions.

-        Signs are displayed at height, with a substantial amount of text written in inadequately small font which makes it difficult or impossible to read and understand from a vehicle. 

The signs are also not conspicuous as there are 7 signs with terms and conditions covering over 120 car spaces in the parking area in front of the business I was a customer of. The same space houses 20 disabled bays which are served by 6 disabled parking signs. The terms and conditions are all placed sporadically so in some places you find two signs barely two meters apart and in other places there is no sign for over 30 meters.

Several of the signs are also facing away from the flow of traffic and away from parking spaces too. Nor are there signs consistently placed next to other important health and safety, fire evacuation, speed or directional signs, which are written in much bigger fonts.

The signage for the terms and conditions has very small font and is several hundred words long which is difficult to read and understand. Furthermore, the terms and conditions were impossible to find on the day.

The different signs are scattered around the site in an inconsistent way and are not within view of customers parking or paying for parking. Examples of inadequate positioning are provided below based on images viewed from Google Maps.

The terms and conditions displayed do not state the parking charges let alone the sum payable for unauthorised parking. The BPS COP states:
“18.3 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.
18.4 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.“

Ground 5 Notice to Owner breaches BPA code:

The Claimant’s ‘Notice to Owner’ letters issued to the defendant attempts to impersonate a real PCN which is for statutory penalties only and this breaches the British Parking Association’s Code of Practice.

I consider any one of the above reasons enough for you to uphold my appeal, and so look forward to your positive response.     

Comments

  • Fruitcake
    Fruitcake Posts: 57,993
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    Well done on another PoPLA win. Please would you mind also posting it on the PoPLA decisions thread where you posted your previous win?
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