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Horizon Parking Ticket at Tesco Hoover Building - POPLA appeal

Hi

Me & my friend got a ticket a hoover building tesco for overstaying. My car is a hire car & friends is owned by them.

I have appealed & asked tesco ceo's excutive team to cancel the ticket but to no avail. 

My mates POPLA code expires today I believe. 

Would I be correct in thinking that the below appeal should be sent to POPLA

I will upload both tickets as soon I foudn out how to.



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 ASDA Barking car park, on 8th June 2024

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. Non-compliance with PoFA 2012
This operator fails the Schedule 4 wording on the same basis that another recent (same wording) Premier Park 'Notice to Keeper' was found as non-compliant by Ombudsman POPLA Assessor Timothy Jessop (and other Assessors since) so for consistency, I point out this decision from a few years ago which is in the public domain:

link

As the appellant has not been identified as the driver, we must ensure this PCN has met the requirements of PoFA.

Schedule 4, Paragraph 9 of PoFA states the PCN must (9f) 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 PCN issued to the appellant states “If within 28 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle."

In this case I do not consider that the operator has fully met the requirements of PoFA, as by informing the appellant it can seek to recover payment after 28 days, it has failed to meet section (9f), as this 28-day period will not begin until the day after the notice is given. The day after the notice is given cannot be determined as Horizon Parking have not recorded the date the PCN was received in the post to the keeper. As such, we cannot conclude that the PCN has been issued correctly.
 

2. No evidence of ownership or legal basis to form contracts to charge for parking
 
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>
«1

Comments

  • Gr1pr
    Gr1pr Posts: 6,568 Forumite
    1,000 Posts First Anniversary Photogenic Name Dropper
    edited 11 November 2024 at 2:59PM
    If yours was a hire vehicle then they will have failed to apply keeper liability to the hirer, plus I do not believe that they will have included a copy of the hire agreement with the NtH that Horizon posted to you 

    So whilst they probably failed to comply with the NTK PCN letter to the hire company, they probably failed POFA when they contacted you with the NtH too

    The main Popla appeal points would be based on 

    POFA non compliance with the NTK PCN and with the subsequent NtH PCN letter 
    Failure to transfer liability from the unknown driver to the keeper 
    No landowner authority 
    Poor and inadequate signage etc

    Your appeal should be no more than 9999 characters, including punctuation 

    Its not "sent" , its uploaded after choosing OTHER 
  • Kiz420
    Kiz420 Posts: 10 Forumite
    Name Dropper First Post


    The above is the back of my friends whos popla code expires today




    The below is the back of my ticket


  • Gr1pr
    Gr1pr Posts: 6,568 Forumite
    1,000 Posts First Anniversary Photogenic Name Dropper
    You can see the difference between the first one that has the top paragraph due to their NTK PCN letter coming to them as the registered keeper, and yours does not have that top paragraph because yours is a hire vehicle where the hire company are the registered keeper and named you as the hirer, so Horizon had to try to comply with a different section in POFA specifically about hire and lease vehicles in your case. So added complications for Horizon to jump through in legalities 
  • Kiz420
    Kiz420 Posts: 10 Forumite
    Name Dropper First Post
    Gr1pr said:
    You can see the difference between the first one that has the top paragraph due to their NTK PCN letter coming to them as the registered keeper, and yours does not have that top paragraph because yours is a hire vehicle where the hire company are the registered keeper and named you as the hirer, so Horizon had to try to comply with a different section in POFA specifically about hire and lease vehicles in your case. So added complications for Horizon to jump through in legalities 
    Thanks. I did notice that while taking the pictures & I did use a different appeal I found on money supermarket for me for hire vehicles. 

    For my friends can I use the above template & assuming I have to use a different template
  • Gr1pr
    Gr1pr Posts: 6,568 Forumite
    1,000 Posts First Anniversary Photogenic Name Dropper
    I suggest that you read the following thread and adapt their Popla appeal to suit your own case as a Hirer 

    https://forums.moneysavingexpert.com/discussion/6560354/flamborough-north-landing#latest
  • Kiz420
    Kiz420 Posts: 10 Forumite
    Name Dropper First Post
    Gr1pr said:
    I suggest that you read the following thread and adapt their Popla appeal to suit your own case as a Hirer 

    https://forums.moneysavingexpert.com/discussion/6560354/flamborough-north-landing#latest
    Thanks. 

    I just need to be spoon fed on the first ticket which is my mates. 

    Is the appeal above in my 1st post ok.
  • Gr1pr
    Gr1pr Posts: 6,568 Forumite
    1,000 Posts First Anniversary Photogenic Name Dropper
    POPLA codes last 33 days, not 28 days, so 32 days after the rejection containing the Popla code is the deadline, so if your M8 has a few more days, wait for critique on the keeper to Popla appeal that you posted 

    To be clear, take the rejection date and add 32 days to it 
  • Coupon-mad
    Coupon-mad Posts: 147,895 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Kiz420 said:
    Got Tesco to cancel them while at POPLA :D

    Fun days
    Great stuff!

    PLAN A STRIKES AGAIN!  :)
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Kiz420
    Kiz420 Posts: 10 Forumite
    Name Dropper First Post
    Kiz420 said:
    Got Tesco to cancel them while at POPLA :D

    Fun days
    Great stuff!

    PLAN A STRIKES AGAIN!  :)
    They only cancelled mine & not my friends.

    I thought they had both.

    Horizon have given an evidence pack for my Friends.

    Still trying to get it cancelled with TEsco
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