PPS - private parking solutions - Bowman Sheriff, Bath St, Nottingham, NG1 1BZ

usernamenotfound

Thanks @Umkomaas
I will include this point as my last point. To save elongating this thread, I've drafted this separately, as follows:
(let me know your thoughts.. Not sure how long worded I can make this one, and also not sure if you mean for me to ad verbatim your last comment)

4) The operator cannot form a contract to be breach as the signage offers the driver nothing

............................

4) Private Parking Solutions appeal response letter claims to quote signage on site: "NO PARKING AT ANY TIME, PRIVATE LAND, STRICTLY NO PARKING". There is no offer to park, so as it cannot therefore be a parking charge emanating from a contract (for the driver to breach), the charge can only therefore be a penalty. No private organisation can issue/charge a penalty, only an authority such as local council or the police can issue this. POPLA must therefore find in my favour.  

 

usernamenotfound

Umkomaas said:

Skim read:

Point 1) is irrelevant if the NtK is PoFA compliant.

Right, I'll remove point 1 then, that's a pity as it forms a good body of text, which I heard is a good tactic against them. I'll have a look on the newbies thread again for other points I might be able to use. Thanks for the help so far.

Umkomaas

usernamenotfound said:

Umkomaas said:

Skim read:

Point 1) is irrelevant if the NtK is PoFA compliant.

Right, I'll remove point 1 then, that's a pity as it forms a good body of text, which I heard is a good tactic against them. I'll have a look on the newbies thread again for other points I might be able to use. Thanks for the help so far.

If you want to leave that in, I'd push it further down the batting order. I think I'd make your point 1 the penalty paragraph. Put POPLA on the back foot early on perhaps?

usernamenotfound

Hmm... Having re evaluated the newbies thread, it seems I'm running low on options for what to put in my POPLA appeal.
I've currently made use of:
Signage 
Landowner Authority
Bespoke point regarding no contract formed and cannot issue a penalty (will be point number 1)
Operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge (I'm considering removing this or making this the very last point, as per Umkomaas' comments)

Am I missing something or is it that my POPLA appeal will not but as full bodied as some of the golden ticket ones.

Coupon-mad

You are correct. You can't use that point about driver/keeper.

Why are you even trying POPLA? Unless you have killer evidence of unreadable signs, I never tell friends to bother, if they get a POFA NTK. They just ignore the letters from this point on, only coming back to me if they get a LBC.

usernamenotfound

Fair enough, I'm just following the steps as shown on the thread and from my past successful experiences before LBC.
I would argue their signage is pretty poor (the "£100 parking charge notice" is barely larger than the rest)
Along with the point @umkomaas made, no harm in trying I suppose.

But if you feel that submitting this would potentially do more harm than good if it does goes to LBC, then I will abort this step.

Umkomaas

You won't come to any harm submitting a POPLA appeal, it's just that fewer are upheld these days. It will give PPS something to deal with, if they don't give up at that stage, they will have to rebut your submission and it will cost them ~£30 POPLA fee. I'd like to see how POPLA handle the penalty point. It's not going to cost you anything, nor is the POPLA decision binding on you. 

Castle

Umkomaas said:

You won't come to any harm submitting a POPLA appeal, it's just that fewer are upheld these days. It will give PPS something to deal with, if they don't give up at that stage, they will have to rebut your submission and it will cost them ~£30 POPLA fee. I'd like to see how POPLA handle the penalty point. It's not going to cost you anything, nor is the POPLA decision binding on you. 

And they have to disclose the landowner's contract.

usernamenotfound

Hi All,

It's been a while as I was away last week.
Thanks to everyone's help on this, I've now revised my POPLA appeal, which although potentially unsuccessful, might stop PPS's pursuit if they decline to rebut.
Let me know your thoughts, after which I will finalise and get this submitted:

usernamenotfound

1/2 (Split into 2 because comment is too long)

Dear POPLA,
Regarding POPLA CODE: (POPLA CODE),
On the (DATE), Private Parking Solutions Ltd. issued a parking charge notice to the driver of vehicle (VEHICLE REG) with the following reason: "Parking in a no parking area"

As the registered keeper I wish to refute these charges on the following grounds:

1) The operator cannot form a contract to be breached as the signage offers the driver nothing
2) Private Parking Solutions Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass.
3) Signage does not comply with the BPA Code of Practice and are not prominent, clear or legible from all parking spaces and therefore are insufficient to form any contract with a driver.
4) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

1) Private Parking Solutions appeal response letter claims to quote signage on site: "NO PARKING AT ANY TIME… STRICTLY NO PARKING". There is no offer to park, so as it cannot therefore be a parking charge emanating from a contract (for the driver to breach), the charge can only therefore be a penalty. No private organisation can issue/charge a penalty, only an authority such as local council or the police can issue this. POPLA must therefore find in my favour.  

2) Private Parking Solutions Ltd lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

It is suggested that Private Parking Solutions Ltd does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that Private Parking Solutions 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. 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 also authorised 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). 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. 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.

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) Signage does not comply with the BPA Code of Practice and were not prominent, clear or legible from all parking spaces to form any contract with a driver

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.

Bearing this in mind, there was categorically no contract established between the driver and Private Parking Solutions 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.

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 this case, which stated 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 itself on twitter, keen to point out the decision related to that car park and those facts only:

(IMAGE OF UKSUPREMECOURT TWEET)

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:
(IMAGE OF PARKINGEYE SIGN)
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 – which is part of the main roadway. 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 the operator of a vehicle 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.

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.

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.''

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:

(IMAGE OF FONT SIZES)

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

(IMAGE OF LETTER VISIBILITY CHART)

''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.”

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 an example of a binding case law from the Court of Appeal offers further support for my argument:

(LINK TO VINE V LONDON COURT CASE)

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.

Based on these points, it is believed that Private Parking Solutions Ltd are not complying with the BPA Code of Practice with regard to 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 Private Parking Solutions Ltd be required to provide strict proof of exactly where the car entered the car park, 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 upon entering and parking. 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.