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    • Georginio
    • By Georginio 30th Sep 17, 8:54 PM
    • 22Posts
    • 24Thanks
    Parking lie - ASDA Kings heath b'ham - POPLA
    • #1
    • 30th Sep 17, 8:54 PM
    Parking lie - ASDA Kings heath b'ham - POPLA 30th Sep 17 at 8:54 PM
    Evening all,

    A PCN was received for the ASDA in Kings Heath in Birmingham.

    POFA is mentioned on the back. I appealed to parking lie as the keeper and have had the rejection and POPLA code.

    The car park in queston has a maximum stay of 90 mins, and the congestion there on a Saturday early afternon make it difficult to get in and back out of the car park in a 30 minute window if you weren't parking. By the time you have parked and done a family shop it is no time at all. I have not referred to that in my appeal as my reading from the forum suggests these are fruitless but I will be emailing the store and Asda to complain on that count.

    I would be extremely grateful iif somebody could have a brief scan of my POPLA. It is all copy and pasted from the forum and I think it makes sense but I am not certain.

    Thanks in advance,

    Dear POPLA,

    PCN Number: xxx
    POPLA Verification Code: xxx

    I write to you as the registered keeper of the vehicle xxxx, I wish to appeal the £70 Parking Charge Notice (PCN) issued by ParkingEye Ltd. I submit the reasons below to show that I am not liable for the parking charge

    1) No evidence of landowner authority
    2) 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
    3) 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
    4) Breach of the BPA Code of Practice on ANPR – DPA and CPUTRs breach.
    5) No Contract was entered into between the Parking Eye and the Driver or Registered keeper
    1. 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

    2. 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

    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.

    In this case, no other party apart from an evidenced driver 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. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as 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 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 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 cannot transfer the liability for the charge using the POFA.

    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.''

    3. 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:

    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.

    If the operator provides to POPLA, supposed evidence of full terms on signage in evidence photos, it is contended that these signs were not in place at all, or if they were, the terms were not close or adjacent to the vehicle at the material time and could not have been read. Moreover, it is reasonable to expect the operator to provide evidence that demonstrates that the signage was legible, prominent in real-time and in place before/on the day of the alleged contravention, not after.

    And any stock photographs ''here's what we say the sign would have said'' and/or aerial picture 'diagrams' with unproven flags or dots added electronically at the whim of an unnamed person on a PC on a random date and with no evidential signature/proof that the person is even familiar with the location, site or signs, will be worthless.

    I put the operator to strict proof of signage positions and true dates of photographs allegedly taken on site. Failing to show the photographs were taken where and when the operators tries to say they were (e.g. no landmarks or embedded dates or metadata that cannot be altered) will also mean that POPLA will not be able to conclude that the PCN was issued correctly.

    Operators often provide a series of photographs from the site but date and time stamps do in some cases, appear to have been added after the photographs have been taken. Clearly I am disadvantaged by having to write this appeal before such evidence has been put forward, but I suggest such photographs should be scrutinised and (if not shown to have been in place and prominently proclaiming the 'parking charge' sum in large letters on the day) rejected accordingly. If the Assessor is at all uncertain that the full terms on signage were clear and in place near the car, and at the entrance, on the day of the event, POPLA will not be able to conclude that the PCN was issued correctly.

    4. Breach of the BPA Code of Practice on ANPR – DPA and CPUTRs breach.
    It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR. The signs fail to inform a driver what the ANPR data will be used for, which is a ‘misleading omission’ in consumer law and a Data Protection breach.

    The driver had no idea that secret camera data would later be used against him to bind him to a charge he knew nothing about and did not agree to. The driver believed any cameras were there for security at the Marina, due to the lack of any other information (a black icon showing a camera communicates nothing and there was no such information anywhere in sight in the dark, in any case).

    Failure to tell a driver how the data will be used is a ‘misleading omission’ of a material fact – prohibited by The Consumer Protection from Unfair Trading Regulations 2008:
    ’’Prohibition of unfair commercial practices’’: 3.—
    (1) Unfair commercial practices are prohibited.
    (2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
    (4) A commercial practice is unfair if—
    (a) it is a misleading action under the provisions of regulation 5;
    (b) it is a misleading omission under the provisions of regulation 6; ‘’

    I have shown that ParkingEye have failed the above tests by:

    - installing cameras without information and warnings about the commercial purpose of the data collection;
    - beginning a new enforcement/ticketing regime without extra signs to tell local drivers who may reasonably expect the old regime to be continuing;
    - beginning a new enforcement/ticketing regime without Advertising/Planning Consent;

    All of the above are ‘misleading actions’ and ‘misleading omissions’ of material facts, a series of commercial practices which are unconscionable and unfair. Even a BPA breach (and certainly DPA and Planning Consent breaches) render a charge under these circumstances ‘prohibited’, unrecoverable and therefore, not properly given:

    (3) A commercial practice satisfies the conditions of this paragraph if— (b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if
    (i) the trader indicates in a commercial practice that he is bound by that code of conduct, and
    (ii) the commitment is firm and capable of being verified and is not aspirational, and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances.

    5. No Contract was entered into between the Parking Eye and the Driver or Registered keeper
    Although I was not the driver of the event, I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. ParkingEye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

    Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

    I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.
Page 1
    • Fruitcake
    • By Fruitcake 30th Sep 17, 10:33 PM
    • 36,805 Posts
    • 83,279 Thanks
    • #2
    • 30th Sep 17, 10:33 PM
    • #2
    • 30th Sep 17, 10:33 PM
    That looks pretty good to me, but I'm no expert.

    Have you determined if parking lie have planning permission for the cameras, and advertising consent for their signs from the council planning department? Whilst this will not win the appeal, it will muddy the waters.

    Have you complained to the ASDA store manager and CEO yet, especially if they have no advertising consent for signs as this is a criminal offence for which the landowner will also be liable?

    Have you complained to your MP and asked them to support the upcoming private members bill concerning this unregulated industry?
    I married my cousin. I had to...
    I don't have a sister.

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    • Georginio
    • By Georginio 1st Oct 17, 12:54 PM
    • 22 Posts
    • 24 Thanks
    • #3
    • 1st Oct 17, 12:54 PM
    • #3
    • 1st Oct 17, 12:54 PM
    Thanks Fruitcake.

    I am unsure of how to check about planning permission and advertising consent. I know it will be in a thread but I couldn't find it. Would it be possible for you to point me towards the right bit of reading?

    • Coupon-mad
    • By Coupon-mad 2nd Oct 17, 12:40 AM
    • 58,434 Posts
    • 71,943 Thanks
    • #4
    • 2nd Oct 17, 12:40 AM
    • #4
    • 2nd Oct 17, 12:40 AM

    ''The store manager at Asda Kings Heath is Stephen Thomas''
    Always complain BEFORE trying POPLA, because PE will say it's too late to cancel if you start POPLA then complain.

    If you are forced to try Plan B of POPLA, this is only useful to you, if you have a ''golden ticket'' from ParkingEye (fully explained in post #3 of the NEWBIES thread):
    2. 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

    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon,
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Georginio
    • By Georginio 3rd Oct 17, 5:14 PM
    • 22 Posts
    • 24 Thanks
    • #5
    • 3rd Oct 17, 5:14 PM
    • #5
    • 3rd Oct 17, 5:14 PM
    Spoke to Mr Thomas who after a lengthy argument cancelled. I will await some kind of cancellation letter from Parking eye. Thank you both as well as the sticky area for the help.
    • Coupon-mad
    • By Coupon-mad 3rd Oct 17, 8:58 PM
    • 58,434 Posts
    • 71,943 Thanks
    • #6
    • 3rd Oct 17, 8:58 PM
    • #6
    • 3rd Oct 17, 8:58 PM
    Great stuff - now wait a couple of days and go through the motions of logging in as if you were going to pay PE. You will see immediately if it's been updated to say 'cancelled'.

    If the charge still shows as 'live' by the end of this week, then I would email PE and tell them Mr Thomas has cancelled it and demand their confirmation by return:

    Asda bosses should be damn ashamed for dropping Smart Parking and letting PARKINGEYE sue people. Of all the parking firms why on earth would ANY retailer actually sign up with THEM??

    Is Asda Head Office's Google broken?

    Didn't they find ParkingEye v Somerfield? Due diligence? Don't they care about customers AT ALL?
    Last edited by Coupon-mad; 03-10-2017 at 9:01 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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