Please help review Popla Appeal letter for Parkingeye | Britannia car park canary wharf

Spicygem

Trying chance at Popla and would really appreciate a review please, thank you so much in advance



Driver paid for an hour and due to how tight the carpark is to manoeuvre in and out off, coupled with having to unload a newborn and toddler in and out of the car and walk to machine/walk back to car, they overstayed by 10mins and 6 seconds. Driver didn't keep receipt of payment and paid with cash but assume Parkingeye should have record of this.

Driver appealed to Parkingeye using one of the templates here (didn’t give away driver details). As expected they've rejected the appeal and sent Popla code.

Please see Popla appeal draft below - I understand there should be a grace period of at least 10 mins so this is the main point of argument. Looks like the letter is pofa compliant so i've not included that argument.

Initial letter - 


Parking eye 1st response:


Parkingeye final response:

Spicygem

Popla appeal:

I am the registered keeper of the above vehicle and have received the above demand from Parkingeye, highlighting that the above-mentioned vehicle had been recorded via their automatic number plate recognition system for “either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted”. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.

As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:

1.     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.

2.     Non-Compliant Signage.

3.     No evidence of Landowner Authority - the operator is put to strict proof of full

compliance with the BPA Code of Practice.

4.     Misleading and unclear signage and not seen so no contract entered into or formed

5.    No landowner contract nor legal standing to form contracts or charge drivers

6.    Photo evidence appears doctored

7.    Insufficient Grace period

 

1] The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person. Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK. The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot – they will fail to show I can be liable because the driver was not me. The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found: ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is,

based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

2) 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.

3) 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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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).

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

Considering the above points, I kindly request that POPLA carefully reviews this appeal and takes into account the inadequacies in Parkingeye’s response. I believe a fair assessment of the situation should include the provision of all relevant evidence, including but not limited to, close- up photographs of the signage at the location on the material date, textual content of the terms and conditions, and information regarding the agreed grace period.

 

Spicygem

4.  Misleading and unclear signage and not seen so no contract entered into or formed

The alleged contravention according to Parkingeye is in" breach of the terms and conditions of use of the car park/private roads/roads. Signs are clearly displayed…" It would appear that signs at this location do not comply with road traffic regulations or their permitted variations and as such are misleading as they are unable to be seen by the driver and could not be read without stopping and so do not comply with BPA code of practice. Parkingeye are required to show evidence to the contrary. In particular the No Stopping Zones section of the Chief Adjudicator's first annual report 2013 states "It is therefore very important that any prohibition is clearly marked bearing in mind that such signage has to be positioned and be of such size as to be read by a motorist without having to stop to look at and read the signs. Signs which are on the red routes unlike the ones indicating most parking restrictions are usually positioned to face the oncoming traffic rather than parallel to it. The BPA code of Practice states drivers must be given time to read and understand and agree or disagree to a contract. Stopping to do this does not mean anyone has agreed to a contract.

5.  No landowner contract nor legal standing to form contracts or charge drivers

I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give Parkingeye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Parkingeye’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require Parkingeye to demonstrate their legal ownership of the land to POPLA.

I contend that Parkingeye is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the landowner/occupier that entitles Parkingeye to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Parkingeye to prove otherwise so I require that Parkingeye produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Parkingeye and the owner/occupier, containing nothing that Parkingeye lawfully use in their own name as a mere agent, that could impact on a third-party customer.

6.  Photo evidence appears doctored

I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged (Independent.co.uk 27 April 2018).

I would challenge Parkingeye to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge Parkingeye that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

7.  Insufficient Grace period

As per the BPA Code of Practice: '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.' Therefore, if a driver stops for a short period of time to read a sign, they must have the opportunity to leave and not accept the terms of an alleged 'contract'. A few seconds, I would argue, does not breach a fair 'grace period', and therefore Parkingeye are in breach of the BPA Code of Practice.

 

 I look forward to a thorough and impartial review by POPLA.

Gr1pr

So the vehicle was on site for 70 minutes and 6 seconds,  so did the driver pay for 60 minutes as you stated   ?  Which should then allow a minimum 10 minutes grace period to leave   ?  Making the 70 minutes a minimum 

If yes,  perhaps make sure that this is the main point of the appeal,  so not item 7 but adapt it and make it item 1, especially because you stated that it's the main argument,  that 6 seconds over the 10 minutes is de minimis, so explain it as if talking to a 5 year old assessor, lead them down that path,  including the delays caused by the awkward site and that the driver left promptly as soon as they were able  ( its definitely your strongest argument   )

Lose the following sentence,  because it doesn't apply

Therefore, if a driver stops for a short period of time to read a sign, they must have the opportunity to leave and not accept the terms of an alleged 'contract'. 

Lose 4) too,  the driver did read the sign and did enter into a contract because they clearly paid for one hours worth of parking 

1) seems to be arguing about Pofa2012 compliance and the transfer of liability from driver to keeper 

Parking eye tend to comply with Pofa,  especially if the POFA paragraph is on the back of the NTK PCN letter,  plus they did state this in their reply and rejection. To me its not a valid argument to say that the non driving keeper has no liability in this case.  Parking Eye are well aware of Pofa2012 and compliance 

Personally I don't think that paragraph 1) has any legs

If no ticket was purchased, then grace periods won't cut it at all

Spicygem

That’s right. 

Paid for 60mins  (didn’t keep the receipt unfortunately, would this be a problem?). 

Stayed for 70mins and 16 secs (not 6 sorry).

Car park is underground and is basically a maze of tight corners to get through. Then after parking you have to walk back up to the hotels entrance to pay. 

Thank you so much - I’ll make the adjustments you suggested, just hope they can find the payment in their systems

Gr1pr

I make it 70 minutes and 6 seconds,  not 16 seconds 

It would have been better to have the proof of payment to add to the popla appeal,  but you should certainly state that full payment was made for one hour,  that the BPA Code of Practice allows a minimum of 10 minutes grace period to depart and that an extra 6 seconds to leave is de minimis,  especially due to the constraints of the site.

Concentrate on your winning arguments,  because the parking contract was entered into when the payment was made,  so signage, landowner authority , POFA and not identifying the driver are side issues,  that may not count in this case

I am sure that the driver read the signs and paid, so presumed to have considered them and accepted them

I am sure that Parking Eye will have a parking contract with the hotel 

The NTK PCN letter looks like it complied with POFA 

So based on the above,  your gut feeling about your strongest argument seems to be correct,  so front and centre,  main point of challenge 

Spicygem

Fab!

Is it worth pointing out to Popla that the driver no longer has the receipt but PE should have evidence of payment? 

Thanks so much for taking the time to respond 🙂

Gr1pr

Might as well put them to strict proof 

Coupon-mad

Spicygem said:

Fab!

Is it worth pointing out to Popla that the driver no longer has the receipt but PE should have evidence of payment? 

Thanks so much for taking the time to respond 🙂

Yes. Show us your new draft because most of the first draft was far too long.

Your first point should admit to driving and say what happened. That you paid for parking and PEye are trying to rip you off for six seconds more than the mandatory grace period.

Spicygem

Coupon-mad said:

Spicygem said:

Fab!

Is it worth pointing out to Popla that the driver no longer has the receipt but PE should have evidence of payment? 

Thanks so much for taking the time to respond 🙂

Yes. Show us your new draft because most of the first draft was far too long.

Your first point should admit to driving and say what happened. That you paid for parking and PEye are trying to rip you off for six seconds more than the mandatory grace period.

Thank you Coupon-mad and Gr1pr. Please see revised draft below, would appreciate your thoughts

Revised Popla appeal:

I am the registered keeper of the above vehicle and have received the above demand from Parkingeye, highlighting that the above-mentioned vehicle had been recorded via their automatic number plate recognition system for “either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted”. There was no windscreen ticket on the vehicle - the notice to keeper was sent via post.

As the registered keeper I wish to refute these charges and have this PCN cancelled on the following grounds:

1.    Insufficient Grace period

2.    Photo evidence appears doctored

 

1.    Insufficient Grace period

As per the BPA Code of Practice: '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.'

 The BPA Code of Practice further states “A grace period as set out at Annex B to this Code must be allowed by the parking operator in addition to the parking period. A parking charge must not be issued during a Grace Period.”

 Driver admits to parking in the hotel carpark but made full payment for 1 hour.  After manoeuvring through the tight corners of the underground car park and parking after finally finding available space, the driver unloaded a newborn and a toddler, then walked up back up to the machine located at the hotel entrance and fully paid for 1 hour parking with cash. The driver did not retain the receipt for proof of payment and put it to Parking eye to strictly prove payment.  The driver promptly left at the end of their parking period.

 The BPA Code of Practice according to annex B allows a minimum of 10 minutes grace period to depart and an extra 6 seconds to leave in this case is de minimis,  especially due to the aforementioned constraints of the site.

 I would argue that Parking Eye have not considered a fair 'grace period', and therefore are in breach of the BPA Code of Practice.

 

2.     Photo evidence appears doctored

I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details (time, location, direction) are added as a black overlay box on top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking Meta data. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged (Independent.co.uk 27 April 2018).

I would challenge Parkingeye to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge Parkingeye that they possess the technology to generate these precise types of coordinates, as they have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

 

 I look forward to a thorough and impartial review by POPLA.

Coupon-mad

Forget point 2.

As points 2 and 3, you need the usual POPLA appeal points in the 3rd post of the NEWBIES thread.