Section 3 (final one)
6) 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 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:
Insert Beavis case sign
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.
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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, the main sign does not clearly mention or bring to the attention of the driver the parking charge, which is in a smaller font than much of the other wording on the sign - the most prominent features on the sign being the pictorial symbols.
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.''
Whilst the Operator has provided two photos of signs at the car park, these are close-up photos of the signs and do not indicate placement at the location or the size and scale of the signs.
Although the car park is described as Norwich Station (Forecourt), there are in fact two separate areas of the car park with different access points from the approach road as can be seen below.
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At the top of the approach road there are signs directing drivers to the two different areas of the car park. Options are either to turn right across the traffic exiting the car park to enter car park area 1, which is to the side of the station building (signed ‘short-stay’) or to bear left following the road round to enter car park area 2 which is immediately in front of the station forecourt (signed ‘long-stay’).
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The BPA Code of Practice states:
‘The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead’.
and
‘A standard form of entrance sign must be placed at the entrance to the parking area’.
The size, positioning, size of font and colours used make it impossible to read the sign without stopping and getting out of the car. For drivers who turn to the right to access car park area 1, it is not possible to read the sign without looking away from the road ahead. In fact any driver would have to look behind them over their left shoulder to attempt to see the sign whilst crossing the path of the exiting traffic – which would be extremely dangerous.
When entering car park area 1, where the vehicle was parked, there are two posts either side of the entrance marking the entry into this area with ‘IN’ on a sign at the top of each post. One of these posts also has a sign attached stating ’20 min parking area’ which is the only sign clearly visible to the driver. Markings on the ground are worn and obscured by traffic entering the area.
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When parked in this area, there is no main entrance sign or terms and conditions sign and it is not possible to see the signs located in the other areas of the car park, ie on the side of the station building or on the forecourt. The driver is not able to see the relevant signs when parking.
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The signs with terms and conditions are not located with the main car park sign and are placed in other areas of the car park. When looking out from the station entrance it is not possible to see where the signs are as they face away from the main area.
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The wording on the Terms and Conditions sign is mostly illegible, being crowded and cluttered. 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. In addition, the lettering is white on a red background which makes it difficult to read and not in line with the following guidance in the BPA Code of Practice:
‘There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background’.
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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 the 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.
7) Bays are poorly marked and ambiguously marked
The parking spaces in car park area 1 where the vehicle was parked are poorly marked with faded/non-standard lettering on the ground and use confusing terminology.
Some bays are marked ‘staff’ – these are the only bays which are clearly marked using numbering and double yellow lines
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Some bays are marked ’20 mins’
Some bays are marking ‘season’
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One area, alongside the external boundary with the street, is marked ’20 mins / seasonal’
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As can be seen from this photo, it is not clear who can park in this area for the following reasons:
• the lettering on the ground is worn and faded.
• the use of a forward slash (‘/’) in English language normally denotes and/or therefore the bay marking indicates different uses are possible for that area
• it is not clear what is meant by ‘seasonal’ and how that differs from bays marked ‘season’ in the same area of the car park. The normal definition of the word ‘seasonal’ in the English language is ‘relating to or characteristic of a particular season of the year’.
• The word ‘seasonal’ appears to have been painted on the ground free-hand in non-standard lettering
I would also like to formally request to see all evidence presented by NCP regarding this appeal and the opportunity to refute any evidence submitted by NCP regarding this appeal.
To quote Henry Greenslade; a highly respected, longstanding lead adjudicator of parking ticket appeals across the board (Council statutory tribunals as well as private parking issues via POPLA), with a reputation for fairness and high integrity.
From the Final Report:
''At POPLA, Assessors consider the evidence produced by each party, all of which evidence the other party has the opportunity to see and comment upon.''
and from page 15 of the POPLA Annual Report 2015:
“…it is certainly a basic principle of a fair appeals service that each party is given the opportunity to see the other party’s case and to comment upon it. This is the position at POPLA. Appellants should obviously receive the operator’s evidence in its entirety.''