PCN - Met Parking Services - Gatwick McDonalds - Failure to validate stay

and1x · 10 April 2018 at 11:16PM

Hi all,

I've received a PCN from MET parking services (Gatwick McDonalds) for 'failure to validate stay in car park'. Basically the driver of my car used the drive through at McDonalds then pulled into their car park. The driver and passengers ate their food and left. The car was in the car park for no longer than 30 mins. To get into the car park there's a barrier with a ticket machine, the driver pushed the button, got a ticket, the barrier opened and they drove in. To get out of the car park there's another ticket machine and barrier. The driver accidently threw the ticket away with the McDonalds rubbish, so upon exiting stopped at the barrier and pushed a button on the barrier assuming it was an intercom to explain to someone what had happened but the barrier just opened so they drove off. Even if the ticket hadn't have been accidently thrown away it wouldn't have been validated anyway as the driver didn't realise that the car park ticket needed to be validated against a purchase.

How do I go about handling this as the driver of my car was a paying customer of McDonalds? Unfortunately the driver doesn't actually have any proof though as they paid cash that day and they no longer have the receipt. The only proof will be from the cctv cameras from the drive through.

The driver of my car contacted Gatwick McDonalds directly but they weren't interested in helping, they just told the driver to contact 'MET Parking Services'.

Do I go through the Met Parking Services appeal process as detailed in the newbies section?

Also to top it off, the same driver of my car went to Gatwick again a week ago and didn't validate their ticket (didn't realise they had to) before exiting, they just stuck the ticket in the machine, the barrier opened and they left so I'm expecting a second PCN. However this time the driver paid using a card so at least they've got some sort of proof.

Any help will be greatly appreciated.

Thanks

Coupon-mad · 10 April 2018 at 11:52PM

Just appeal as per the NEWBIES thread, not saying who was driving, to get a POPLA code.

Please now edit your post a LOT, to remove and change all your words about who parked, change it all to 'a driver of my car'.

Until recently that car park had a 90 minute free stay (going by other threads I just searched & read) so maybe they've just changed it to barrier/validate and of course, have not put clear & prominent signs at the drive-thru window itself nor properly ensured that the drive-thru staff validate drivers' tickets at the hatch (which of course, any decent company would).

This should be winnable at POPLA, but for now just use the template to get the POPLA code.

and1x · 11 April 2018 at 11:12AM

Thanks for your response, I'll go through the appeal process.

Yea it must've been a recent change as I've used that McDonalds and car park a lot in the past and there were definitely no barriers there before.

The_Deep · 11 April 2018 at 11:18AM

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

and1x · 27 April 2018 at 10:09PM

My appeal was rejected, here's their response:

Thank you for your correspondence received in regards to Parking Charge Notice 000000000. After careful consideration we have decided to reject your appeal for the following reasons:

The terms and conditions of parking are clearly stated on the signs prominently displayed at this location and these include that motorists must validate their stay with proof of purchase in the restaurant prior to exiting the car park and use their validated ticket to raise the barrier. When you left the car park you acknowledged that you had not validated your stay and confirmed you were parked without authorisation by pressing the button to raise the barrier. We therefore believe the charge notice was issued correctly and are upholding it.

Turning to the points you raised:
1. The charge arises from a breach of contract
2. Attached
3. These may be viewed on appealmetparking.co m

With regard to the S 10 notice we believe we may process the data as it is necessary for pursuing our legitimate interests in seeking payment of the outstanding charge notice revenue due to us.

This decision, which has been based on the facts of the case and takes into account our consideration of any mitigating circumstances, is our final decision.

I was also sent a photo of their sign which can be viewed here: h ttps://ibb.co/gKvcZH

What grounds do I base my POPLA appeal on?

Thanks

Coupon-mad · 27 April 2018 at 10:28PM

Base it on other MET ones, and ANPR ones.

fisherjim · 28 April 2018 at 9:08AM

That sign says nothing about being able to lift the barrier with a button.
It says "use their validated ticket to raise the exit barrier" that instruction suggests to me the barrier won't lift without the presentation of validated ticket, so their system and signage is at fault.

Half_way · 28 April 2018 at 9:21AM

Who owns the franchise for this location?
Get in touch with them, tell them to cancel, state that you do not appreciate the stress and time wasting as a result of having to deal with the fact that they have allowed a predatory parking company that is completely unregulated to harass and pursue genuine customers.

and1x · 11 May 2018 at 12:24AM

Half_way wrote: »

Who owns the franchise for this location?
Get in touch with them, tell them to cancel, state that you do not appreciate the stress and time wasting as a result of having to deal with the fact that they have allowed a predatory parking company that is completely unregulated to harass and pursue genuine customers.

I don't know who owns the franchise but I did contact the manger at the store and they weren't interested, told me to deal directly with MET.

Coupon-mad · 11 May 2018 at 12:27AM

OK, so let's get on with looking at your POPLA appeal draft based on similar ones, but also now including the new point you find when you search guinea pig ICO POPLA as keywords.

and1x · 11 May 2018 at 12:34AM

Does my POPLA appeal seem ok?

POPLA Ref ______
MET Parking Services PCN no ______

A notice to keeper was issued on 27th March 2018 and received by me, the registered keeper of _______ for the alleged contravention of ‘Failure to validate stay in car park’’ at McDonalds, Gatwick. 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) MET has deliberately chosen not to use POFA, has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
2) Non-compliance with requirements set out in Schedule 4 of POFA 2012
3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4) Misleading system and signage at fault
5) 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

1) MET has deliberately chosen not to use POFA has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)

MET has deliberately chosen not to use POFA and make no mention of such or the transfer of liability to the keeper under POFA 2012 in the Notice to Keeper I have received.

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. 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 parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4 which they have not in this case. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

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.

Furthermore, the vital matter of full compliance with the POFA 2012 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."

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 which in this case the operator is not.

This exact finding was made in 6061796103 against 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."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 5 above.

2) Non-compliance with requirements set out in Schedule 4 of POFA 2012

If MET Parking Services did wish to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012, which they have not, the Notice to Keeper must meet the strict requirements set out in Schedule 4 of POFA 2012; paragraph 8 states specifically “The notice must—specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;” The notice to keeper that I have received does not state the period of parking to which the notice relates, only the time the PCN was issued.

Due to the omission of this detail the notice to keeper does not comply with Schedule 4 paragraph 6 of POFA 2012 and means that myself, the registered keeper of the vehicle cannot be held to account for the alleged debt of the driver

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 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

4) Misleading system and signage at fault

In the appeal rejection MET Parking Services have alleged that “When you left the car park you acknowledged that you had not validated your stay and confirmed you were parked without authorisation by pressing the button to raise the barrier.”

First of all the way MET have worded that implies I was the driver even though I appealed as the keeper and clearly stated to them that I was NOT the driver.

Secondly nowhere on their sign or on the button/barrier (pic attached) does it state that pushing the button will raise the barrier. Their sign says "use their validated ticket to raise the exit barrier" that instruction suggests to me the barrier won't lift without the presentation of a validated ticket, so their system and signage is at fault.

5) 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

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:

link

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:

link

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.

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

link

''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:

link

''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:

link

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.

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.

I therefore request that POPLA uphold my appeal and cancel this PCN.

Attachment: h ttps://s7.postimg.cc/42ubqry6z/Barrier.jpg

PCN - Met Parking Services - Gatwick McDonalds - Failure to validate stay

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