CP Plus PCN appeal rejected. Is it worth appealing to PAOLA and how?

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Coupon-mad wrote: »

Last month I told you to include the extra words, and gave you them:

http://forums.moneysavingexpert.com/showthread.php?p=73663884#post73663884



And waamo added, surprised that you had not said a word about 'POFA/no keeper liability':


So, what paragraphs did you add about no keeper liability, and the words I showed you and the template wording mentioned in the link I gave you a month ago 'the individual has not been shown to be the individual liable'?

Hoping you have not come this far without mentioning the POFA/keeper liability as an appeal point at all, despite being shown the words, given a link and reminded by waamo.

Please show us what your final draft appeal said about the POFA?

Did you ever get sent a NTK?

I regret to admit I did not add any paragraph about POFA/no keeper liability as I was not sure how can I show where it fails to comply with the POFA. My main point was the signage that is not enough and not adequate in this car park. I will copy and paste bellow what I sent to PoPLA.

Can I still add it to the comments or is it too late? I am going to say about the contract page they sent, that is unless plus the signage again. The pictures of the signage they provided are taken from "miles" away. They show that picture like the t&c where so close, in fact this pole is situated on the carpark across the road. They forgot to mention there is a road in between and that those t&c are facing the other way.
Just take a look a the pictures, first one is their, second took by the driver.
Forgive me for not listening to your instructions, I am a busy mum of 3 year old, I am also foreign and not so easy for me to understand all regulations and all I am reading from you. I just had to learn everything from this forum and I do my best to get it cancelled as I know I am 100% right there is no signage on this site and this is my main point.


https://imagizer.imageshack.com/v2/320xq90/r/923/tXNqc6.jpg

https://imagizer.imageshack.com/v2/320xq90/r/924/SM5fpS.jpg

POPLA Ref

CP Plus Parking PCN no
A notice to keeper was issued on xth October 2017 and received by me, the registered keeper of..xxxxx for an alleged contravention of !!!8216;NOT PARKED IN
DESIGNED PARKING SPACE!!!8217;!!!8217; at Giltbrook Shopping Park, Nottingham. I am writing to you as the
registered keeper and would be grateful if you would please consider my appeal for the following
reasons:
1) The signs in this car park are not prominent, clear or legible from all parking spaces (ref. POPLA
case Rochelle Merritt 5960956830).
2) No evidence of Landowner Authority.
1) The signs in this car park are not prominent - not placed at the entrance to the site, and there are not
enough signs placed in other locations throughout the site, not clear or legible from all parking spaces
and there is insufficient notice of the sum of the parking charge itself.
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!!!8221; 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!!!8221; 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.
The alleged contravention, according to CP Plus, is in 'Not parked at designed parking space and the
signage on site is sufficient'. It would however appear that signage at this location do not comply with
road traffic regulations or their permitted variations and as such are misleading - they are unable to be
seen by a driver and certainly are not placed at the entrance to the site of the car park between
Dacatlon and Ikea stores at Giltbrook Shopping Park, where the car was parked. The signage is
missing all over the whole of this area. The driver was not given the chance to be aware of the risk
involved at the time of parking or leaving the vehicle and therefore the signage do not comply with the
BPA code of practice.
As per section 4 of the BPA code of practice 'Signs must show, in plain and intelligible language, all the
terms on which an operator may wish to rely. Signs must be placed at the entrance to the site, and
there must be enough signs placed in other locations throughout the site so that drivers are given the
chance to be aware of the risk involved at the time of parking or leaving the vehicle.'
CP Plus are required to show evidence to the contrary.
2. 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 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).
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
information such as the land boundary and bays where enforcement applies/does not apply. Not
forgetting evidence of the various restrictions which the landowner has authorised can give rise to a
charge and of course, how much the landowner authorises this agent to charge (which cannot be
assumed to be the sum in small print on a sign because template private parking terms and sums have
been known not to match the actual landowner 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 strongly believe that CP Plus are in breach of the BPA Code of Practice.
I therefore request that POPLA uphold my appeal and cancel this PCN.

This is exactly what I've sent supporting with many pictures were there is no signage on whole the area where was parked.
For comments, can I send PoPla PDF to show more pictures with my comments as a contrary to their?

Coupon-mad wrote: »

I would not show the picture with the ruler, because in fact it shows readable wording!
Ok I get that, thank you.

Your other picture it much better, and their picture of the car park doesn't show what the signs say, in situ.
Exactly and in fact this one of them is a disclaimer notice rather than t&c. I have added what is on the board.
https://imagizer.imageshack.com/v2/320xq90/r/922/bbXfPI.jpg
The nearest sign is actually across the road 0,1 miles. Is it good to show this picture?
https://imagizer.imageshack.com/v2/320xq90/r/923/DtBhl0.jpg
https://imagizer.imageshack.com/v2/320xq90/r/923/DtBhl0.jpg
Car was parked behind red container
Please show us the Notice Keeper.

I will just need to remove the details....