POPLA appeal - MET parking - McDonalds Canning Town - advice on wording please

alicealice

Hi all.
I'm another absolute idiot who didn't see this incredible forum until it was too late.... I already admitted I was the driver   

I parked in McDonalds, Canning Town, for less than 90 mins, purchased food (well, my partner did) and it was consumed there in McDonalds. I received a PCN a week later from MET for the reason 'Vehicle was left in McDonalds’ car park while the occupants left McDonalds premises'. They have time/date stamped photos of our car parked and the signs. They don't provide photos/evidence of us leaving the premises.

I appealed to MET, unfortunately admitting that I was the driver (I know...). I attached bank statement evidence of our purchase in McDonalds and confirmed that we did not leave the premises. My partner wrote a witness statement (I know, I know...) to corroborate this.

Having now read the Newbies thread, I'm currently at the POPLA appeal stage.

I'd be grateful for advice on the wording of my POPLA appeal, thank you.

- I assume I cannot use the key points of 'A compliant Notice to Keeper was never served - no Keeper Liability can apply' or 'Appellant not being the individual liable'? 
- Do I still have a chance without these points?

alicealice

Dear Sir/Madam 

As the registered keeper, this is my appeal about a Penalty Charge Notice issued by MET Parking Services Ltd for an alleged breach of the company's terms and conditions in the McDonalds Car Park at Canning Town, London, E16 1EN on xxxxx.

POPLA Ref: xxxx

MET PCN Ref: xxxx

VRN: xxx

1. Insufficient evidence of the alleged contravention

2. The site boundary is not clear

3. Lack of standing / authority from landowner

4. Non-Compliant Signage

1.        Insufficient evidence of the alleged contravention

The evidence provided by MET Parking Services for the alleged breach of terms and conditions stated as left the premises are still photos of an empty parked vehicle. There is also no evidence that the supposed boundaries are shown on any signs or on a prominent map that individuals can see while on site in order for them to make a reasonable decision as to what then might be considered 'off site'.

Even if a sign says a charge can be issued for 'leaving the site', this means nothing if 'the site' is not defined. This could include any number of shops, a cash point, toilets, cafe, drop-off areas, delivery area, the car park itself, rest area/benches and any other section of a retail park. 

No evidence has been provided from MET Parking Services showing the vehicle driver leaving the site and I require MET Parking Services to provide this. Such evidence should include photographs of the contravention and a site map and a picture of the signage that would have communicated to the driver the defined boundary of the site they are alleged to have left. The burden of proof shifts to MET Parking Services to prove otherwise and to explain why their attendant (presumably):

1. Watched a driver or occupant walk towards the edge of an undefined boundary,

2. Did not attempt to stop/warn the driver nor even ascertain if a passenger had already been dropped at the door of the premises.

The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.05.2012 District Judge McIlwaine stated:

‘you say he left the premises...where does the premises start and where does the premises finish?....there is a duty to mitigate the loss.’

In this case, I contend that MET Parking Services have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.

2.        The site boundary is not clear

The notice to keeper states that the reason for issuing the charge notice is: “Vehicle was left in McDonalds’ car park while the occupants left McDonalds premises.”

Nowhere on the signage does it state:

- What the site boundary is

- Show any map of where site boundary begins and ends

- That leaving the site fails to comply with terms and conditions

I require evidence from MET Parking Services to show a site map and a picture of the signage that would have communicated to the driver the defined boundary of the site they are alleged to have left.

There are no legible markings distinguishing the boundary of McDonalds car park. How does one know that one has left the site?

 

alicealice

3.   Lack of standing / authority from landowner - 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. 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:

Section 7.1 states:

 “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.”

Section 7.21 states:

“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.”

Section 7.3 states:

“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” 

I do not believe that MET’s mere site agreement as a contractor issuing PCNs and letters 'on behalf of' the landowner gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay MET (not that a keeper can be liable anyway on non-relevant land and MET cannot enforce byelaws themselves). MET have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that MET are entitled to pursue these charges in their own right.

In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put MET to strict proof of compliance with all of the above requirements.

alicealice

4.        Non-Compliant Signage - 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 - given the minuscule font size of the £100, which is illegible in from the driver’s view at the site entrance, and is not visible from any parking spaces - 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, 2015.

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.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, similar in appearance to un-related parking signage, 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 signs with the full terms displayed - i.e. with the sum of the parking charge itself in large lettering, and the full terms displayed on a single sign, - neither at the entrance nor elsewhere, 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 02/06/2016, 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.''

From the evidence I have seen the terms appear to be displayed inadequately, in letters that are approximately half an inch high.

I put the operator to strict proof as to the size and font of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself, and to prove the location and number of signs required to be read to fully read the full terms of parking.

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.”

“... Letter Visibility Chart shows the maximum reading distance for your sign to make the best impact, as well as the overall readable distance. A good rule of thumb is every 1 inch of letter height provides 10 feet of readability with the best impact. For example, 3” tall letters make the best impact within 30’; however, they can still be seen and read from up to 100’ away”

 “… The font type that you choose can also impact the visibility of your text. Very thin fonts and script fonts can potentially decrease visibility. When choosing fonts, you should select a bold style that is easy to read and with sufficient spacing between letters (kerning).”

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:

 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.

 

Taking all the above into account, I therefore respectfully request that my appeal is upheld, and the charge is dismissed.

Yours faithfully,

LDast

It is not and never was a "Penalty Charge Notice". It was a Parking Charge Notice and the keeper received a Notice to Keeper (NtK).

Ask yourself, what evidence have MET provided to prove their allegation? The burden of proof is on Met to show that their allegation is true. It is not yours to prove otherwise.

Identifying the driver in this instance is not really an issue. What exactly have they alleged in their NtK. What is the exact wording of their "cause of action"? Are they alleging that the driver left the premises or that the keeper left the premises or that a passenger left the premises? Have they shown the sign that formed the contract that the driver allegedly breached?

POPLA are only interested in whether the PCN was issued correctly and will not consider any mitigation. You, the appellant, put MET to strict proof that the driver breached the contract. MET must respond to that point and provide evidence that they will be relying on to the assessor and you will be given a chance to see that evidence and respond to it before an assessment is made.

All the other usual POPLA points of appeal such as signs that do not comply with the BPA CoP or not prominent enough to bring the charge to the attention of the driver. No landholder authority to issue PCNs in their own name and so on.

Coupon-mad

The above draft POPLA Appeal will win.

  

alicealice

They allege that the 'occupants' left the premises. They don't say 'driver' or 'keeper'.
Their exact wording: "Vehicle was left in McDonald's car park while the occupants left McDonald's premises"

They show a sign that says "Drivers and passengers must remain on the premises while the vehicle remains in the car park"

I still maintain that they haven't shown proof that the occupants/driver/keeper/whoever actually left the premises though.

alicealice

**UPDATE**

Received a POPLA email informing me that MET Parking have withdrawn the parking charge! 

THANK YOU to everyone who contributes to this forum, such an amazing resource and I was totally clueless to all of this before I found it.

Coupon-mad

Easy when you know how! Always come here first, especially as the law will change in a few months and there will be a proper appeals service. We'll adapt our advice.

Greenfingers46

Hello, I have received a parking charge notice for parking at McDonalds, claiming the occupants of the car left the premises. 

I have appealed to MET Parking Services sending my receipt for purchases made three minutes after the first photograph of my empty car was taken (there are also pictures from three minutes after my purchase time), but this has been rejected. The letter says a survey was carried out by the parking attendant of all customers in the restaurant, including the toilets, and there was no-one on the premises when the survey was conducted taking responsibility for my vehicle.

I would now like to go to POPLA. Could someone tell me if the template letter at the top of this thread, provided in June 2024, is still the correct one to use?

Should I also include evidence of my expenditure in McDonalds?

Finally the signage in the McDonalds I went to was in fact directly above my parked car. The part about not leaving the premises is in small type and and amount of the fine – £100 - is relatively large. Should I still include Section 4 on "Non-compliant signage"?

Many thanks!

Coupon-mad

Welcome!

But you need your own new thread please.