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

Spicygem

Coupon-mad said:

Forget point 2.

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

Thanks i'll remove point 2.

I'm so sorry to have to ask but re the usual POPLA appeal points , do you mean this points from the newbiews thread? I removed signage, landowner and POA from my previous draft as Gr1pr didn't think they'd be relevant in this case...So leaves me with the last point around Permit car parks?

Coupon-mad

I removed signage, landowner and POA from my previous draft as Gr1pr didn't think they'd be relevant in this case.

I think he said they 'may' not be as important as your main first point, but I'd always include those two points (unclear signage, lack of landowner authority).

Definitely not the other things in your first draft. POFA doesn't look relevant.

Your main point is the key but you must tell POPLA in simple words what you mean. How long you were there, how long it took to pay at the machine/by app on arrival, and that this PCN looks to rely on SIX SECONDS which must fall within the region of the 'minimum ten minute grace period' in the CoP. You paid for 60mins, stayed for 70mins and 6 seconds. The PCN is a joke.

Say it like it is, in your own words so POPLA understand. Not a pile of template stuff only.

Like I said:

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.

PEye will throw in the towel.

They know they are chancing their arm with this one. You just have to point it out!

Spicygem

Coupon-mad said:

I removed signage, landowner and POA from my previous draft as Gr1pr didn't think they'd be relevant in this case.

I think he said they 'may' not be as important as your main first point, but I'd always include those two points (unclear signage, lack of landowner authority).

Definitely not the other things in your first draft. POFA doesn't look relevant.

Your main point is the key but you must tell POPLA in simple words what you mean. How long you were there, how long it took to pay at the machine/by app on arrival, and that this PCN looks to rely on SIX SECONDS which must fall within the region of the 'minimum ten minute grace period' in the CoP. You paid for 60mins, stayed for 70mins and 6 seconds. The PCN is a joke.

Say it like it is, in your own words so POPLA understand. Not a pile of template stuff only.

Like I said:

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.

PEye will throw in the towel.

They know they are chancing their arm with this one. You just have to point it out!

Hi Coupon-mad, thanks again for your help 🙂. I have made the changes you recommended. Please let me know if this new draft is now good to go. Thank you!

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. 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
3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

1.    Insufficient Grace period

ParkingEye has failed to adhere to the BPA Code of Practice, specifically regarding the mandatory grace period provisions.

The BPA Code of Practice clearly states:

“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.”

Furthermore, it 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.”

The driver admits to parking in the hotel’s underground car park and making payment for 1 hour of parking. The sequence of events is as follows:

• Upon entering the car park, it took approximately 6 minutes to manoeuvre through the tight corners and locate a vacant space.

• The driver then had to unload a newborn and a toddler, which took a further 5 minutes.

• The pay machine was located at the hotel entrance, requiring a walk back up to it, and payment was made in cash — taking an additional 3 minutes.

• Unfortunately, no receipt was retained, but the driver insists that full payment was made for 60 minutes, and put it to Parking eye to strictly prove payment as their records that day will show.

• The vehicle left the site 70 minutes and 6 seconds after the time of entry.

The BPA Code of Practice according to annex B allows a minimum of 10 minutes grace period to depart. In this case, the driver paid for 60mins and stayed for 70 mins and 6 seconds. The driver stayed for an extra time of only 6 seconds, which clearly falls within the required minimum grace period.

Furthermore, the initial entry period before the payment was made (while searching for a space, unloading children, and walking to the machine) also falls under the initial “consideration period” as defined by the Code. It is clear that the driver acted promptly and in good faith to pay for parking, and left within a reasonable timeframe.

To issue a PCN based on a mere 6-second overstay, especially in light of the time spent navigating the site, caring for young children, and making prompt payment is de minimis, clearly disproportionate and fails to consider the required grace period set out by the BPA Code of Practice.

2. 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%2Bsign_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.

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:

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. 

Continued below

Spicygem

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

Gr1pr

Seems OK to me and I am glad to see that the most important point is the first point 

I stated earlier that the others were less important,  but didn't imply that they should be left out 

For clarity,  always include the signage paragraph and the no landowner authority paragraph,  so those are the main 3 points, but the focus is rightly on the stupid few seconds,  especially after the driver paid to park,  so they had their parking fee

Coupon-mad

I'd remove this which makes no sense, re a P&D car park:

"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."

And I'd be surprised if the current Code of Practice has that paragraph 7. I don't think landowner authority is para 7 any more.

Quote the 2025 current one linked on the BPA's website.

Spicygem

Gr1pr said:

Seems OK to me and I am glad to see that the most important point is the first point 

I stated earlier that the others were less important,  but didn't imply that they should be left out 

For clarity,  always include the signage paragraph and the no landowner authority paragraph,  so those are the main 3 points, but the focus is rightly on the stupid few seconds,  especially after the driver paid to park,  so they had their parking fee

Thank you again:)

Spicygem

Coupon-mad said:

I'd remove this which makes no sense, re a P&D car park:

"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."

And I'd be surprised if the current Code of Practice has that paragraph 7. I don't think landowner authority is para 7 any more.

Quote the 2025 current one linked on the BPA's website.

Thanks Couponmad! Just to confirm before I make that last change, I’ve checked the latest COP on the BPA website and this is the paragraph on landowner authority right? -

“ 14.1. Where controlled land is being managed on behalf of a landowners), before a parking charge can be issued written confirmation must be obtained by the parking operator from the landowners) covering:

• the identity of the landowners)
• a boundary map of the land to be managed;
• such byelaws as may apply to the land relating to the management of parking;
• the permission granted to the parking operator by the landowners) and the duration of that permission
• the parking terms and conditions that are to be applied by the parking operator, including as appropriate the duration of free parking permitted, parking tariffs, and specific permissions and exemptions, e.g. for staff, residents or those stopping for short periods such as taxi and minicab drivers, delivery drivers and couriers;
• the means by which parking charges will be issued;

NOTE 1: For example, to the windscreen or through the post.

g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs h) the obligations under which the parking operator is working, in compliance with this Code and as a member of an ATA;

• notification of the documentation that the parking operator may be required to supply on request to authorised bodies detailing the relationship with the landowner; and
• the parking operator's approach to the handling of appeals against parking charges.

NOTE 2: Where byelaws have been made, which prohibit the issuance of a parking charge, unless specific legal provision has been made to suspend them, they take precedence and therefore careful consideration must be given to ensuring that the parking management arrangements are consistent with them.

NOTE 3: Particular care is needed to establish appropriate contractual terms, including the application of parking terms and conditions, in respect of controlled land where leaseholders may have rights that cannot be qualified or overruled e.g. by imposing a requirement on the resident of an apartment block to display a permit to park in contravention of their rights under their lease, or to ensure that free parking periods do not breach planning consents.”

Coupon-mad

Yep, that's it.

Spicygem

Coupon-mad said:

Yep, that's it.

Awesome thank you!