Urgent Help with ParkingEye POPLA Appeal

aconfusedcat

I made a post a few days ago but there was no response and it is nearing the 33 day deadline for POPLA on Monday. The location is 58-78 Avenue Road, Southall.

The driver paid for 20 minutes of parking. They had to wait for 2 other drivers to finish using the machine and for a beggar to move away from the machine - the driver was paying using cash. The driver has kept receipt of the parking ticket showing it was purchased at 18:22. The driver left before the 10 minute grace period expired starting from the time of purchase but ParkingEye argues that the ticket doesn't cover the extra minutes overstayed. Driver appealed to ParkingEye and admitted they were driver and keeper but was rejected and now given a POPLA code. This is a P&D car park but there is an option to use the PayByPhone. 

I have tried to contact the landlord but there was no response, the car park is now locked and under ownership of the landlord. I have emailed my MP but I am awaiting a response. 

I can't seem to upload an image but you can see the entrance of the car park at 58 Avenue Road - it's in between the entrances to shops and has a one way sign. 


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 car park and making payment for 20 minutes of parking. The sequence of events is as follows:

·      Upon entering the car park, it took approximately 1 minute for the driver to manoeuvre through a busy car park and locate a vacant space.

·      The driver then had to wait for a beggar begging for cash next to the machine from drivers to move, taking around a minute.

·      The driver had to wait for 2 other drivers to finish using the pay machine and who were struggling to use the machine, which took a further 3 minutes.

·      The pay machine is to the back of the car park, requiring vehicle registration number to be inputted and payment was made in cash – taking an additional 2 minutes.

·      There is a receipt retained showing that the driver paid for 20 minutes.

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 20mins and stayed for 33 mins and 31 seconds. The driver stayed for an extra time of 211 seconds, which clearly falls within the required minimum grace period of 600 seconds.

Furthermore, the initial entry period before the payment was made (while searching for a space, waiting for the queue to clear, waiting for the beggar to move 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 211-second overstay which falls within your grace period, especially in light of the time spent navigating the site, waiting for other motorists to finish using the machine, 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:

 

 

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:

 

 

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:

 

 

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

 

 

''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:

 

 

''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:

 

 

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. 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.

 

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 14 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

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

a)    the identity of the landowner(s)

b)    a boundary map of the land to be managed;

c)     such byelaws as may apply to the land relating to the management of parking;

d)    the permission granted to the parking operator by the landowner(s) and the duration of that permission

e)    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;

f)      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;

i)       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

j)       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.

 

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

Gr1pr

FYI

That's 3 threads about the same case, the rule is one thread per incident,  so add the above to your last thread, OR,  report this thread and ask for all 3 threads to be merged 

Adding one post to the other thread would have taken it to the top again  ( bumping  )

Thank you 

Ps, it's definitely NOT 10 minutes for the grace period 

Its a minimum of 10 minutes