Horizon / Tesco - January 2025 - 28 days error POPLA Appeal

doubleoseven

Appeal online on their portal:-

This is an appeal by the Registered Keeper - No driver details will be given. 

Please do NOT try the usual trick of asking for driver details in order to get around the fact that your Notice to Keeper does not comply with Schedule 4 of The Protection of Freedoms Act 2012. 
As there is no keeper liability, liability cannot flow from the driver to the keeper and so this will be an automatic win at POPLA. Please cancel this Parking Charge Notice or issue a POPLA code at which point you will auto withdraw.

(courtesy of KeithP / andromeda24 thread)

doubleoseven

Response:-

Dear Appellant, 

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

 Review of your Appeal

 The Parking Charge was issued lawfully and in full and proper accordance with the Private Parking Sector Single 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. 

 One of the terms and conditions is that vehicles must not exceed the maximum stay period allowed. As this vehicle was found to be parked longer than the maximum period allowed, a Parking Charge was correctly issued.

 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.

 As we have not been provided with the name and a serviceable address for the driver/hirer, under Schedule 4 of the Protection of Freedoms Act 2012, we do have the right, subject to meeting the requirements of the Act, to recover from the Registered Keeper the amount that remains outstanding. We have obtained the name and address of the registered keeper of the vehicle from the DVLA for the purposes of enforcing this charge.

Given the above, and whilst we have considered your representations carefully, on this occasion your appeal has been rejected.

 The Charge Amount and Methods of Payment

 In good faith, Horizon will hold the charge at the current amount of £40.00  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 athttps://horizonparking.co.uk/pay-parking-charge-notice/

 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 xxxxx

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 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.

Yours sincerely,

doubleoseven

Will work on a variation of this template later: https://forums.moneysavingexpert.com/discussion/comment/81261480#Comment_81261480

Coupon-mad

doubleoseven said:

Will work on a variation of this template later: https://forums.moneysavingexpert.com/discussion/comment/81261480#Comment_81261480

Perfect research. 

doubleoseven

Regarding signage. Could anyone comment on the adequacy of the signs?

The evidence supplied in the letter and online show the car approaching the car park from the road outside the car park (Cheddar Lane), which appears to be an adopted road. There are no signs as you enter Cheddar Lane from the main road (New Market Road). 

There are no clear signs as you enter the car park at the first entrance, turning right from Cheddar Lane. There is one to the left at the pedestrian entrance. Photo to follow. 

If you park directly to the right of the first entrance there are no signs around those spaces. 

If you then walk down the North side of the car park, past the Ikea pick up point, in front of the car pictured above, there are also no signs towards the entrance of the supermarket as you follow that side. See map below for route. 

No signs all the way down this side in front of Ikea or by the car wash. 

 No signs as you walk all the way down to the entrance. 

To the left hand side of the first entrance on the pedestrian walk way, not very easily noticeable as you enter the car-park there is a sign that has a code for paying behind 3 hours. 


It's more visible from the pedestrian entrance over zebra crossing. 




This is the sign near entrance one and it's at the pedestrian entrance. It does not state the terms just tells you how to pay if parking over 3 hours. This faces out onto Cheddar street.  The print is very small, impossible to read whilst driving. The reserve of this sign has the parking terms but this is literally the last pedestrian exit onto the zebra crossing.

This would not be visible if you took the route to the shop and back to the space shown above. Only if you took the central pedestrian route. 

Also, the sign is obscured as you enter:

doubleoseven

Just wondering if I should include signage in my Popla complaint?

Coupon-mad

Yes but not the last two (close ups). Your other evidence is great!

doubleoseven

Thanks, I have removed those from the tread. 

Do the photos of the car entering the adopted road prior to going in and actually parking in the car park represent a lack of evidence also? 

Please find draft 1 below. I removed 

1. Lack of evidence of Landowner Authority

As I wasn't sure if it's relevant to mine, but can add back in?

doubleoseven

POPLA draft 2  - part 1 (Updated 13/2 14:58)

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 Tesco Cambridge, on 12th January 2025 04:12 PM. For the avoidance of doubt, the driver’s identity has not been provided and this statement remains purely from the registered keeper.

 

Summary of Case:

I wish to challenge this Parking Charge Notice on the following grounds:

1.     Non-compliance with the Protection of Freedoms Act (PoFA) 2012

2.     Inadequate signage and insufficient notice of the sum of the parking charge 

3.     Lack of evidence of Landowner Authority

1. Non-compliance with PoFA 2012

The Notice to Keeper (NtK) issued in this case is non-compliant with the requirements set out in schedule 4 of The Protection of Freedoms Act (PoFA) 2012. This is because the NtK incorrectly starts the 28-day period for transferring liability one day too early.

PoFA Requirements:
Under paragraph 9(2)(f), the NtK must include the following wording:
"The notice must state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper to pay the unpaid parking charges or, if the keeper was not the driver of the vehicle, to provide the name of the driver and a current address for service for the driver and to pass the notice on to the driver."
It must also state:
"(i) that 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; and
(ii) the period of 28 days beginning with the day after that on which the notice is given."

Under paragraph 9(6), the notice is deemed to have been 'given' to the keeper on the second working day after the date it was issued. The 28-day period then starts the day after that.
For example:

1.     The NtK was issued on Monday 16th December.

2.     The NtK is presumed to be 'given' to the keeper on Wednesday 18th December (the second working day).

3.     The 28-day period should then begin on Thursday 19th December (the day after the second working day).

Where the NtK's Wording is Non-Compliant:
The wording on the back of the NtK attempts to transfer liability to the keeper one day early by stating that the 28-day period starts “from the second working day after the date of this Parking Charge," rather than the day after the second working day.

Why This Matters:
Incorrectly starting the 28-day period is significant because PoFA requires full and strict compliance with its wording to hold the registered keeper liable. By attempting to transfer liability one day too early, the operator has not met the legal requirements of PoFA, meaning that the keeper cannot be held liable for the parking charge.
The mistake in the NtK effectively cuts short the keeper’s response period and breaches PoFA’s clear requirements, which unfairly prejudices the keeper. POPLA must recognise that this premature attempt to start the liability transfer invalidates the notice, making it non-compliant with PoFA, and as a result, the parking charge should be cancelled.

Reference to Previous POPLA Decisions:

Successful POPLA Decision (December 2024)

I would like to draw POPLA’s attention to a recent decision regarding a similar case involving Horizon Parking (POPLA code 3762434330, decision date 17/12/2024), which was allowed on the basis of the same non-compliance with PoFA. The assessor in that case ruled as follows:

“The appellant has presented a technical challenge to the parking operator’s application of PoFA. The parking operator is reliant on the correct application of PoFA in this case as driver liability cannot be established. As such, in respect of the 28-day period given for the PCN to be paid or for the driver’s details to be provided, I must note that Notice to Keeper in this case does state: ‘the period of 28 days from the second working day after the date of this Parking Charge’. However, PoFA stipulates (at paragraph 9 subparagraph (2)(f)) that this period must be given from: ‘the period of 28 days beginning with the day after that on which the notice is given’. In respect of the presumed date of issue, paragraph 9 subparagraph (6) of PoFA advises: ‘A notice sent by post is to be presumed…to have been delivered (and so ‘given’ for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted’. As such, I must uphold the appellant’s grounds in respect of the wording used by the parking operator in this case, as this sets the 28-day timescale from the presumed date of issue, whereas PoFA stipulates this must begin from the day after. Accordingly, I must allow this appeal.”

This case is almost identical to mine in terms of the non-compliant wording used in the NtK, and I respectfully ask that POPLA consider this previous decision when reviewing my appeal.

Acknowledgment of Error in Unsuccessful POPLA Decision (January 2025)

In another case where an appeal on this same point was initially rejected, the POPLA Complaints Team has since confirmed that the assessor’s judgment was incorrect. While the decision could not be reversed, the complaints handler explicitly acknowledged the error, stating:

“I acknowledge that the assessor has incorrectly stated that the given date… I would like to apologise for this error… As PoFA 2012 states that motorists must be given 28 days from the day after the notice is given, you are correct in stating that the 28 days should have begun from [the correct date].”

This acknowledgment highlights the importance of adhering to PoFA requirements and avoiding repeated errors in the interpretation of the legislation. I respectfully request that the assessor for this appeal carefully reviews both the successful December 2024 decision and the Complaints Team acknowledgment to ensure a correct and fair decision is made in this case.

In Summary:

·       PoFA states that the NtK is presumed 'given' on the second working day after issuance.

·       The 28-day period to transfer liability then begins the day after the second working day.

·       The NtK incorrectly starts the 28-day period from the second working day itself, which is one day too early.

·       As PoFA requires exact compliance, this error invalidates the attempt to transfer liability to the keeper.

This is a crucial challenge that POPLA should uphold, as it directly affects the legality of the operator’s attempt to hold the keeper liable.

2. Inadequate Signage and Insufficient Notice of the sum of the Parking Charge

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 £sum, which is illegible in most photographs and does not appear at all at the entrance - 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:

http://imgur.com/a/AkMCN

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:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking+sign_001.jpg

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.

RE: Tesco Newmarket Road, Cambrdige:

In this Tesco Carpark, the signs are sporadically placed, and if you review the evidence supplied below, there are places with none at all. In general these signs have very small print which is not legible even close up and certainly not whilst driving a car, it is easy to park and walk to shop without being adequately informed about the parking restrictions, demonstrated below with photographic evidence.

https://ibb.co/4gK0CkMc
https://ibb.co/8LVy6gHb

The evidence supplied by Horizon shows the car approaching the car park from Cheddar Lane and exiting on Cheddar lane, the adopted road the services the industrial estate before Tesco. 

https://ibb.co/0RcNFMfC

In the above photo of the area, the red star indicates where the car was in the evidence on Cheddar lane. 

There are no signs entering Cheddar lane from New Market Road (main road) and the photos evidence is Cheddar lane: 

Should you then turn right (from Cheddar lane) into the first entry (shown in the map above and labeled entry one), there are no clear signs either side of the entry point as you cross the threshold into the parking area. And none also when leaving from that exit. 

https://ibb.co/Vcp0v3bD

On entry into the car park, there is one small sign 13.25 metres to the left of the entrance of the first entry point, but it's visible only to those crossing the pedestrian crossing. This is an advert for downloading the app and with a code, mentioning 3 hours but it does not have the terms and conditions. The print is very small and hard to read from a metre away, clearly totally inappropriate for drivers to see from a moving car over 10 metres away, even if it was actually pointing towards drivers, which it is not. 

https://ibb.co/s9BBRKbb

Google maps measure tool: https://ibb.co/yc6twmws

The sign is also obscured as you enter from Cheddar road from a drivers perspective by the zebra crossing light and sign: https://ibb.co/wN5sxPZZ

The sign is not visible as you cross the threshold as it’s confusingly orientated towards the pedestrian crossing / entrance to car park: https://ibb.co/BHJkXXYh

If you then immediately right again to park next to the car-wash there are no signs, and walk along the northern edge of the carpark, past the Ikea pick up point there are no signs at all. 

https://ibb.co/C5vM5Ty7

https://ibb.co/Z1fR1094

https://ibb.co/S7Pr26B0

https://ibb.co/8WND2n9

https://ibb.co/1fRQvpTx

https://ibb.co/Cpw6qHtc

https://ibb.co/dTBHFzV

The small green sign in the above pictures is unremarkable, not immediately obvious, partially obscured and upon inspection after visiting the site to gather evidence, the wording is mostly illegible due to being quite high up, on a small plague. 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.

More importantly this sign also does not give the terms of the car-park, it just has a code for paying for parking. The terms are on the reverse which are again on the pedestrian crossing that would only be visible when leaving the car park on foot. The small print on this is even worse, with large blocks of text which are eligible without taking a photo and zooming in or using some kind of magnifying tool. 

No clear signs relating to parking on exit: https://ibb.co/27kt7h6W

In summary, the signs are sporadicly placed, many areas do not have signs, the signs themselves are inadequate with small text. There are NO obvious notices to drivers on entering Cheddars road or the threshold of the parking spaces. Nor in the parking area by car wash shown. There is an advert about paying for parking over 3 hours without express terms over 10 metres to the left facing the pedestrian crossing, which is inadequate anyway but too far away from the entry to be noticed or read by drivers. 

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. 

doubleoseven

POPLA draft 2  - part 2 (updated 13/2 - 14:58)

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:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''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:

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.

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.

 

3. Lack of Evidence of Landowner Authority

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.

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

 

I respectfully request that POPLA reject this charge and uphold my appeal based on these grounds.

Thank you for considering my appeal.

Kind regards,
***********

Coupon-mad

doubleoseven said:

Thanks, I have removed those from the tread. 

Do the photos of the car entering the adopted road prior to going in and actually parking in the car park represent a lack of evidence also? 

Please find draft 1 below. I removed 

1. Lack of evidence of Landowner Authority

As I wasn't sure if it's relevant to mine, but can add back in?

You always include a challenge re landowner authority. Photos of a car going in and out are normal and are considered sufficient evidence of likely parking, unless evidence exists to the contrary.