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  • FIRST POST
    • P3dr0
    • By P3dr0 18th Jul 18, 6:02 PM
    • 19Posts
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    P3dr0
    McDonalds Car Park Gatwick: Parking Charge for not Validating a Ticket
    • #1
    • 18th Jul 18, 6:02 PM
    McDonalds Car Park Gatwick: Parking Charge for not Validating a Ticket 18th Jul 18 at 6:02 PM
    We received on the 17/07/2018 a Notice to Registered Keeper from MET Parking Services with date of the alleged contravention 30 May 2018 stating: "the vehicle with reg no. XXXXX was observed parked in an apparent breach of the terms and conditions that are displayed on signs in prominent places around the parking area and that those motorists entering the site agree to be bound by. As a result, this parking charge notice, which is now immediately payable, has been issued. The reason for issuing the charge notice is: Failure to Validate stay in car park"

    We went to McDonalds on the 30/05/2018, the 03/07/2018 and the 06/07/2018 and in all 3 occasions parked the car, ate inside and left the restaurant in less than 50 minutes (60 minutes free allowance). We have the credit card statements records showing we were genuine customers, but not the actual receipts or car park tickets.

    We did not validate the car park tickets as we were not aware of this requirement at the time. We have not received any notices for the alleged "breaches that we could have incurred during our visits on the 03/07/2018 and 06/07/2018 to date, but we fear we will.

    We visited yesterday 17/07/2018 the restaurant and contacted the manager but he asked us to contact MET directly as there was nothing they could do. During this visit we tested the system and found that there are two big red signs displayed at this car park, but these can be seen from every space in the car park from the driver's seat can't be necessarily read.

    One of these signs is directly opposite to the barrier and clearly seen in the photographic evidence printed in the NRK. However, a driver leaving the car park will be focusing his/her attention on the barrier's direction and the car in front and not on the sign by the fence. During the alleged offences there was a small queue leaving the car park and at least a couple of drivers experienced problems with the system and had troubles opening the barrier.

    The natural and sometimes almost instinctive reaction of many drivers when an automatic barrier does not open when the ticket is presented is to press the button and ask for assistance. MET has taken this action as a consent to pay a disproportionate car park charge for 60 minutes free parking.

    To make matters worse, the barrier' screen is not readable during a bright day as the screen is too dark (all visits took place during bright sunny spells) and any text or messages presented on screen were not be visible under this conditions.

    Today, we were on-foot and pressed the button at the exit barrier and the barrier lifted. The text on the screen could not be read as it was sunny, approximately at the same time as the previous visits. Surely this is considered by MET as an agreement to pay car park charges and illustrates how the system is setup to levy charges against ticket validation instead of misuse/abuse of the facilities.

    Nobody inside the restaurant offered us to validate the car park ticket or had any signs related to the car park validation requirements.

    We would like to start the appeal procedure available at MET website, but not quite sure if we should "bundle" our three visits together or one at the time. We understand that after three visits not seeing the red big signs maybe difficult to believe but, we genuinely did not see any until these were pointed out by the restaurant manager, which illustrates how poor the signage positioning and prominence is in real life terms and how little attention we give to signposts constantly bombarding our senses.

    We were thinking to adapting the NEWBIES reques of appeal and include all three visits, even though only the notice for the 30/05/2018 has been received. We would really appreciate any advice provided on this matter and going forward with the POPLA.

    Many thanks in advanced.
Page 1
    • Redx
    • By Redx 18th Jul 18, 6:22 PM
    • 18,807 Posts
    • 23,782 Thanks
    Redx
    • #2
    • 18th Jul 18, 6:22 PM
    • #2
    • 18th Jul 18, 6:22 PM
    each pcn will be dealt with separately, so only deal with one if you only have one (any others are dealt with if a pcn or pcn,s are received)

    the template appeal is used for the initial appeal, without any changes

    post #3 of that thread has POPLA help

    also look at any other MET appeals that were done in the last 12 months , especially for that location, plagiarise them as much as you like , you arent the first and wont be the last either


    also complain in writing to MICKEY DEES head office too , as the local manager lied
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • KeithP
    • By KeithP 18th Jul 18, 6:22 PM
    • 8,572 Posts
    • 8,442 Thanks
    KeithP
    • #3
    • 18th Jul 18, 6:22 PM
    • #3
    • 18th Jul 18, 6:22 PM
    The keeper should appeal each PCN as they are received.

    Do not try and amalgamate these tickets into one appeal.

    Appeal each PCN separately using the blue text template appeal found in post #1 of the NEWBIES FAQ sticky thread.

    No need to change or add to the appeal text - send it just as it is.

    Do not disclose the driver's identity to anyone.
    .
    • Half_way
    • By Half_way 18th Jul 18, 6:29 PM
    • 4,214 Posts
    • 5,963 Thanks
    Half_way
    • #4
    • 18th Jul 18, 6:29 PM
    • #4
    • 18th Jul 18, 6:29 PM
    contacted the manager but he asked us to contact MET directly as there was nothing they could do.
    He has lied to you, either through stupidity on his part, and attempt to fob you off , or as a tactic to get you to pay up.
    The Mc Donalds franchise/location will be jointly and severally liable for the actions of its agents, if they say cancel then MET will have no choice but to follow the instructions of the principal ( mc donalds)
    From the Plain Language Commission:

    "The BPA has surely become one of the most socially dangerous organisations in the UK"
    • P3dr0
    • By P3dr0 18th Jul 18, 6:30 PM
    • 19 Posts
    • 0 Thanks
    P3dr0
    • #5
    • 18th Jul 18, 6:30 PM
    • #5
    • 18th Jul 18, 6:30 PM
    Thanks very much to Redx and KeithP, much appreciated.

    Will deal with NRP separately and will let you know.
    • P3dr0
    • By P3dr0 9th Aug 18, 1:33 PM
    • 19 Posts
    • 0 Thanks
    P3dr0
    • #6
    • 9th Aug 18, 1:33 PM
    Reply received from MET Parking Services
    • #6
    • 9th Aug 18, 1:33 PM
    Received an email today from MET yesterday rejecting my appeal.

    This email also have a POPLA verification code and states that I could appeal to POPLA or the Ombudsman Services and continues: "By law we are also required to inform you that Ombudsman Services (ombudsman-services.org) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA as explained above"

    They have also included 7 phots telling their side of the story and a copy of the signpost on-site.

    I would assume that must start the appeal process with POPLA?

    ...but wonder why MET does not participate in the Ombudsman Service?

    Awaiting eagerly for your advice regarding what to do next? Should I acknowledge this email at all after specifically asking MET to contact me my post in my rejection letter? What to include in this POPLA appeal? What should my communication/letter say?

    This is my 1st time doing something like this and is fairly stressful, must confess..!

    Thanks very much to Redx, KeithP and Half_way, much appreciated.
    • KeithP
    • By KeithP 9th Aug 18, 1:52 PM
    • 8,572 Posts
    • 8,442 Thanks
    KeithP
    • #7
    • 9th Aug 18, 1:52 PM
    • #7
    • 9th Aug 18, 1:52 PM
    That's a perfectly standard letter.

    Yes, you need to crack on with your PoPLA appeal.

    Read post #3 of the NEWBIES FAQ sticky thread to find out exactly how to do that.

    Sticking PoPLA Gatwick into the forum search facility and choosing show posts will bring up many ideas. Including this successful appeal:
    .
    • P3dr0
    • By P3dr0 9th Aug 18, 4:46 PM
    • 19 Posts
    • 0 Thanks
    P3dr0
    • #8
    • 9th Aug 18, 4:46 PM
    Thanks K,
    • #8
    • 9th Aug 18, 4:46 PM
    I shall do as advised and will come back if stuck.
    • P3dr0
    • By P3dr0 11th Aug 18, 3:32 PM
    • 19 Posts
    • 0 Thanks
    P3dr0
    • #9
    • 11th Aug 18, 3:32 PM
    • #9
    • 11th Aug 18, 3:32 PM
    Do you think I should be adding some of the details discussed in my initial post?
    I would really appreciate your thmbs-up before sending this documents to POPLA appeal.
    Look forward to hear from you,
    Best regards,

    POPLA Verification Code:
    MET Parkin Services PCN no:

    A notice to keeper was issued on ____ and received by me, the registered keeper of the Vehicle Registration Number: ____ for the alleged contravention of ‘Failure to validate stay in car park’’ at McDonalds, Gatwick. This vehicle is routinely used by more than one individual.

    As a registered keeper of this vehicle and as a result of this claim, I the registered keeper of the vehicle visited McDonalds restaurant at Gatwick Airport, used their car park and it was noticed that there is no signage at the entrances to the site from the main road, nor are the instructions given on the signs clearly indicated.

    I also had fairly long conversation with the Manager, who was unhappy that these complaints were becoming a frequent occurrence. The Manager expressed his disgust with the way MET Parking Services are producing these PCN to legitimate patrons and driving away business and expressed his wish that unfair PCN be cancelled but added that there was nothing that he could do as the alleged “offence had occurred too long ago”.

    He also stated that the “signage was confusing, not enough signs for the large car park area and not present inside the restaurant were tickets are actually validated”. In fact, during my visit I saw no signs inside the restaurant and no staff offered or prompted to validate the car par ticket.

    I honestly believe that the driver of my vehicle has done nothing wrong as a matter of principle as they were genuine customers of the restaurant that day and they kept their stay to less than 30 minutes (copy of the credit card statement attached below).

    As the registered keeper I would be grateful if you would please consider my appeal for the following reasons:

    1) MET Parkin Services has deliberately chosen not to use POFA and 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 and timetable set out in Schedule 4 of POFA 2012

    3) Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.

    4) No evidence of Landowner Authority nor legal standing to form contracts or charge drivers - the operator is put to strict proof of full compliance with the BPA Code of Practice.

    5) Misleading system and signage at fault.

    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.

    7) Consumer Protection from Unfair Trading Regulations - breach

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

    1) MET has deliberately chosen not to use POFA and 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."

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

    If MET Parkin Services want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and MET Parkin Services have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, the Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that MET Parkin Services have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.

    Furthermore, the notice to keeper was not received within the maximum 28 days period from the date of the alleged breach. Specifically, the alleged breach occurred on ___, and the notice to keeper was issued 42 days later on ___ and received the ___.

    The BPA code of practice also says '20.14 when you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.


    3) Failure to comply with the data protection 'ICO CCTV Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.

    BPA’s Code of Practice (21.4) states that: “It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:

    • be registered with the Information Commissioner
    • keep to the Data Protection Act
    • follow the DVLA requirements concerning the data
    • follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.

    BPA’s Code of Practice (36.1a) states that:

    “You may send an NTO to the registered keeper…”
    “You must tell them about the complaints procedure they can use to tell the Information Commissioner and the DVLA if they believe their data has been used inappropriately.”

    The guidelines from the Information Commissioner’s Office that the BPA’s Code of Practice (21.4) refers to is the CCTV Code of Practice found at:

    link

    The ICO’s CCTV Code of Practice makes the following assertions: “This code also covers the use of camera related surveillance equipment including:

    • Automatic Number Plate Recognition (ANPR);”

    “the private sector is required to follow this code to meet its legal obligations under the DPA. Any organisation using cameras to process personal data should follow the recommendations of this code.”

    “If you are already using a surveillance system, you should regularly evaluate whether it is necessary and proportionate to continue using it.”

    “You should also take into account the nature of the problem you are seeking to address; whether a surveillance system would be a justified and an effective solution, whether better solutions exist, what effect its use may have on individuals”

    “You should consider these matters objectively as part of an assessment of the scheme’s impact on people’s privacy. The best way to do this is to conduct a privacy impact assessment. The ICO has produced a ‘Conducting privacy impact assessments code of practice’ that explains how to carry out a proper assessment.”

    “If you are using or intend to use an ANPR system, it is important that you undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary.”

    “Example: A car park operator is looking at whether to use ANPR to enforce parking restrictions. A privacy impact assessment is undertaken which identifies how ANPR will address the problem, the privacy intrusions and the ways to minimise these intrusions, such as information being automatically deleted when a car that has not contravened the restrictions leaves a car park.”

    “Note: ... in conducting a privacy impact assessment and an evaluation of proportionality and necessity, you will be looking at concepts that would also impact upon fairness under the first data protection principle. Private sector organisations should therefore also consider these issues.”

    “A privacy impact assessment should look at the pressing need that the surveillance system is intended to address and whether its proposed use has a lawful basis and is justified, necessary and proportionate.”

    The quotations above taken directly from the ICO’s CCTV Code of Practice state that if MET Parking Services wish to use ANPR cameras then they must undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary. It also states that MET Parking Services must regularly evaluate whether it is necessary and proportionate to continue using it.

    It therefore follows that I require MET Parking Services to provide proof of regular privacy impact assessments in order to comply with the ICO’s CCTV Code of Practice and BPA’s Code of Practice. I also require the outcome of said privacy impact assessments to show that its use has “a lawful basis and is justified, necessary and proportionate”.

    The ICO’s CCTV Code of Practice goes on to state:

    “5.3 Staying in Control

    Once you have followed the guidance in this code and set up the surveillance system, you need to ensure that it continues to comply with the DPA and the code’s requirements in practice. You should:

    • tell people how they can make a subject access request, who it should be sent to and what information needs to be supplied with their request;”

    “7.6 Privacy Notices

    It is clear that these and similar devices present more difficult challenges in relation to providing individuals with fair processing information, which is a requirement under the first principle of the DPA. For example, it will be difficult to ensure that an individual is fully informed of this information if the surveillance system is airborne, on a person or, in the case of ANPR, not visible at ground level or more prevalent then it may first appear.

    One of the main rights that a privacy notice helps deliver is an individual’s right of subject access.”

    MET Parking Services have not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). This is in direct violation of the ICO’s CCTV Code of Practice – specifically with the extracts quoted above.

    As such, given the omissions and breaches of the ICO’s CCTV Code of Practice, and in turn the BPA’s Code of Practice that requires full ICO compliance as a matter of law, POPLA will not be able to find that the PCN was properly given.

    4) No evidence of Landowner Authority nor legal standing to form contracts or charge drivers - the operator is put to strict proof of full compliance with the BPA Code of Practice.

    I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give MET Parkin Services any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, MET Parkin Services lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require MET Parkin Services to demonstrate their legal ownership of the land to POPLA.

    I contend that MET Parkin Services is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

    I believe there is no contract with the landowner/occupier that entitles MET Parkin Services to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to MET Parkin Services to prove otherwise so I require that MET Parkin Services produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between MET Parkin Services and the owner/occupier, containing nothing that MET Parkin Services can lawfully use in their own name as a mere agent, that could impact on a third-party customer.

    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.

    5) 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.”

    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.

    Nowhere on their sign and 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". This instruction suggests to me that the barrier won't lift without the presentation of a validated ticket, so their system and signage is confusing and therefore, at fault.

    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.

    Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious and parking terms and 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, some of the signs in this car park do not display the full terms and there are no details of the sum of the parking charge itself in large lettering at the entrance or at the exit barrier either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is 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.''

    Based on a recent visit to this car Park and 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:

    ''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.''

    ''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.

    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.

    7) Consumer Protection from Unfair Trading Regulations - breach

    During the second reading of the Private Parking Code of Practice Bill on 2nd February 2018...
    • KeithP
    • By KeithP 11th Aug 18, 3:51 PM
    • 8,572 Posts
    • 8,442 Thanks
    KeithP
    On a quick glance I would suggest that your paragraph starting "As a registered keeper of this vehicle..." needs adjustment.

    I had to read it a couple of times to realise that you are talking about a visit to the site at some time after the date of the alleged transgression.
    The first time I read it, it looked like the registered keeper was effectively admitting to being the driver at the time.

    It would be a shame if the PoPLA assessor came to the same wrong conclusion.
    Last edited by KeithP; 11-08-2018 at 4:50 PM.
    .
    • Umkomaas
    • By Umkomaas 11th Aug 18, 4:47 PM
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    Umkomaas
    You need to do a 'Find & Replace' on 'MET Parkin' (there's a number with the letter 'g' missing).

    Your preamble before the actual appeal looks (to me) a little bit too much of a narrative ramble. Too many 'I's. Probably too much information that the assessor is unlikely have great interest in as it won't materially affect the decision - unless he/she draws any incorrect inferences!

    Can you sharpen it up a bit and from more of a detached angle?
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • P3dr0
    • By P3dr0 11th Aug 18, 4:55 PM
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    P3dr0
    I fine tuned the beggining of the letter of appeal to the following:

    POPLA Verification Code: _____________
    MET Parkin Services PCN no: __________

    A notice to keeper was issued on _________ and received by me, the registered keeper of the Vehicle Registration Number: ________ for the alleged contravention of ‘Failure to validate stay in car park’’ at McDonalds, Gatwick. This vehicle is routinely used by more than one individual.

    As a registered keeper of this vehicle and as a result of this claim, I visited McDonalds restaurant at Gatwick Airport and noticed whilst using their car park that there is no signage at the site entrance from the main road, nor are clear instructions regarding:

    a) What is expected from the drivers using these car park facilities
    b) How to validate the ticket
    c) Where to validate the ticket

    I honestly believe that the driver of my vehicle has done nothing wrong as a matter of principle as they were genuine customers of the restaurant that day and they kept their stay to less than 30 minutes (copy of the credit card statement attached below).

    As the registered keeper I would be grateful if you would please consider my appeal for the following reasons:

    1) MET Parkin Services has deliberately chosen not to use POFA and 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 and timetable set out in Schedule 4 of POFA 2012

    3) Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.

    4) No evidence of Landowner Authority nor legal standing to form contracts or charge drivers - the operator is put to strict proof of full compliance with the BPA Code of Practice.

    5) Misleading system and signage at fault.

    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.

    7) Consumer Protection from Unfair Trading Regulations – breach


    I therefore request that POPLA uphold my appeal and cancel this PCN.
    • P3dr0
    • By P3dr0 11th Aug 18, 4:56 PM
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    P3dr0
    and added these details on point 5:

    5) Misleading system and signage at fault

    In the appeal rejection MET Parking Services have alleged that !!!8220;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.!!!8221;

    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.

    Nowhere on their sign and 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". This instruction suggests to me that the barrier won't lift without the presentation of a validated ticket, so their system and signage is confusing and therefore, at fault.
    !!!8195;
    As a registered keeper of this vehicle and as a result of this claim, I visited McDonalds restaurant at Gatwick Airport and noticed whilst using their car park that there is no signage at the site entrance from the main road, nor are clear instructions regarding:

    a) What is expected from the drivers using these car park facilities
    b) How to validate the ticket
    c) Where to validate the ticket

    My visit took place on the 17/07/2018 at approximately 13:15 during bright sunny spell, similar to the conditions present on the 30 May 2018 when the alleged offence took place, and any text or messages displayed by the exit barrier screen were not clearly visible or readable, as shown on pictures above.

    During this visit It was noted that there are two big red signs displayed at this car park, but these can!!!8217;t be seen from every space in the car park from the driver's seat let alone read it.

    One of these signs is directly opposite to the exit barrier and clearly seen above and in the photographic evidence provided by MET Parking Services. However, a driver leaving the car park will be focusing his/her attention on on-coming traffic, pedestrians, the car in front and the exit barrier's direction and not in the direction where the sign by the fence is displayed.

    The natural and sometimes almost instinctive reaction of many drivers when an automatic barrier does not open when the ticket is presented is to press the button requesting assistance. MET Parking Services system does not considers this natural reaction, conveniently interpreting this reaction as a consent to pay a disproportionate car park charge (where 60 minutes free parking is actually granted to customers).

    During my 30 minutes visit, I witnessed a small queue leaving the car park and some drivers clearly experiencing difficulties leaving the car park: and all pressed the button at some point during this process.

    Not having a validated ticket yet, I approached the exit barrier by foot and the exit barrier lifted when I pressed the button. These actions surely should not be considered as my agreement to pay car park charges and illustrates how the system is setup to levy charges indiscriminately against ticket validation instead of misuse/abuse of the facilities.

    There were no signs related to the car park validation requirements inside the restaurant, were the ticket validation takes place and nobody inside the restaurant offered to validate the car park ticket neither during my purchase, when I collected my meal or when I left the restaurant.

    I also had fairly long conversation with the Manager, who was unhappy that these complaints were becoming a frequent occurrence. The Manager expressed his disgust with the way MET Parking Services are producing these PCN to legitimate patrons and driving away business and expressed his wish that unfair PCN be cancelled but added that there was nothing that he could do as the alleged !!!8220;offence had occurred too long ago!!!8221;.

    He also stated that the !!!8220;signage was confusing, not enough signs for the large car park area and not present inside the restaurant were tickets are actually validated!!!8221;. In fact, during my visit I saw no signs inside the restaurant and no staff offered or prompted to validate the car par ticket.


    All other points remain unchanged awaiting your feedback.

    Many thanks in advanced.
    • The Deep
    • By The Deep 11th Aug 18, 5:20 PM
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    The Deep
    Even if PoPLA allow this charge I cannot see a judge doing so. Wanting a £100 damages for such a minor breach of a contract is, in my opinion, trifling, and the Law does not concern itself with trifles, and a judge may well think that £300 for three such trifle was a scam. He/she may well consider it de minimis.

    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 House of Commons recently

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

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

    https://en.wikipedia.org/wiki/De_minimis
    You never know how far you can go until you go too far.
    • P3dr0
    • By P3dr0 11th Aug 18, 6:13 PM
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    P3dr0
    You are absolutely right!

    The problem is that with so busy lives and so little knowledge of law, we rather pay the reduced fine and move on with our lives... and these companies know this and take advantage.. is not only wrong, it is unethical.

    Do you think that as presented above, am I ready to submit my appeal to POPLA? Should I be considering additional changes?
    • The Deep
    • By The Deep 11th Aug 18, 6:21 PM
    • 9,964 Posts
    • 9,752 Thanks
    The Deep
    Personally, I would not bother PoPLA, but then, I have always been an awkward old !!!!!!.
    You never know how far you can go until you go too far.
    • Fruitcake
    • By Fruitcake 11th Aug 18, 6:47 PM
    • 37,183 Posts
    • 83,890 Thanks
    Fruitcake
    Personally I think there is too much waffle in the preamble. You don't need to say the keeper visited the site. You just use the Inadequate Signage point, and include your own photos to back this up, especially ones of the screen by the barrier taken in daylight showing that the words on said screen cannot be read.

    I agree as above that there is too much use of the word "I" and a PoPLA assessor might mistake the comments about the site visit as coming from the driver on the date of the alleged event.
    I certainly had difficulty following the narrative.

    In addition, you do not need, " I would be grateful if you would please consider my appeal."

    "Here is my appeal as keeper", is all you really need.

    You also need to correct spelling (where not were) and formatting errors (!!!8217;t).

    Use statements of fact.
    "There are no signs in the cafe about needing to enter a VRN to validate parking. Take photos of the interior as proof."

    "The driver was not informed by any staff member of this requirement either."
    Last edited by Fruitcake; 11-08-2018 at 6:52 PM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • P3dr0
    • By P3dr0 11th Aug 18, 7:28 PM
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    P3dr0
    Comments taken into account and the preamble looks like this:


    As the registered keeper of the Vehicle Registration Number: ________, a Notice to the Keeper was received on the 16 July 2018 for the alleged contravention of !!!8216;Failure to validate stay in car park!!!8217;!!!8217; at McDonalds, Gatwick on the 30 May 2018. This vehicle is routinely used by more than one individual.

    Here is my appeal as keeper:

    1) MET Parking Services has deliberately chosen not to use POFA and 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 and timetable set out in Schedule 4 of POFA 2012

    3) Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.

    4) No evidence of Landowner Authority nor legal standing to form contracts or charge drivers - the operator is put to strict proof of full compliance with the BPA Code of Practice.

    5) Misleading system and signage at fault.

    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.

    7) Consumer Protection from Unfair Trading Regulations !!!8211; breach

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

    !!!8195;
    • P3dr0
    • By P3dr0 11th Aug 18, 7:29 PM
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    P3dr0
    Mostly coy and paste from other posts, Points 1 to 4 look like this:

    1) MET has deliberately chosen not to use POFA and 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: !!!8220;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 !!!8216;reasonable presumption!!!8217; 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."
    2) Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012

    If MET Parking Services want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and MET Parking Services have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, the Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that MET Parking Services have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA.

    Furthermore, the notice to keeper was not received within the maximum 28 days period from the date of the alleged breach. Specifically, the alleged breach occurred on 30 May 2018, and the notice to keeper was issued 42 days later on 13 July 2018 and received the 16 July 2018.

    The BPA code of practice also says '20.14 when you serve a Notice to Keeper, you must also include information telling the keeper the !!!8216;reasonable cause!!!8217; you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.


    3) Failure to comply with the data protection 'ICO CCTV Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.

    BPA!!!8217;s Code of Practice (21.4) states that: !!!8220;It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:

    a) be registered with the Information Commissioner
    b) keep to the Data Protection Act
    c) follow the DVLA requirements concerning the data
    d) follow the guidelines from the Information Commissioner!!!8217;s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.

    BPA!!!8217;s Code of Practice (36.1a) states that: !!!8220;You may send an NTO to the registered keeper!!!8230;!!!8221;

    !!!8220;You must tell them about the complaints procedure they can use to tell the Information Commissioner and the DVLA if they believe their data has been used inappropriately.!!!8221;

    The ICO!!!8217;s CCTV Code of Practice makes the following assertions: !!!8220;This code also covers the use of camera related surveillance equipment including: Automatic Number Plate Recognition (ANPR);!!!8221;

    !!!8220;the private sector is required to follow this code to meet its legal obligations under the DPA. Any organisation using cameras to process personal data should follow the recommendations of this code.!!!8221;

    !!!8220;If you are already using a surveillance system, you should regularly evaluate whether it is necessary and proportionate to continue using it.!!!8221;

    !!!8220;You should also take into account the nature of the problem you are seeking to address; whether a surveillance system would be a justified and an effective solution, whether better solutions exist, what effect its use may have on individuals!!!8221;

    !!!8220;You should consider these matters objectively as part of an assessment of the scheme!!!8217;s impact on people!!!8217;s privacy. The best way to do this is to conduct a privacy impact assessment. The ICO has produced a !!!8216;Conducting privacy impact assessments code of practice!!!8217; that explains how to carry out a proper assessment.!!!8221;

    !!!8220;If you are using or intend to use an ANPR system, it is important that you undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary.!!!8221;

    !!!8220;Example: A car park operator is looking at whether to use ANPR to enforce parking restrictions. A privacy impact assessment is undertaken which identifies how ANPR will address the problem, the privacy intrusions and the ways to minimise these intrusions, such as information being automatically deleted when a car that has not contravened the restrictions leaves a car park.!!!8221;

    !!!8220;Note: ... in conducting a privacy impact assessment and an evaluation of proportionality and necessity, you will be looking at concepts that would also impact upon fairness under the first data protection principle. Private sector organisations should therefore also consider these issues.!!!8221;

    !!!8220;A privacy impact assessment should look at the pressing need that the surveillance system is intended to address and whether its proposed use has a lawful basis and is justified, necessary and proportionate.!!!8221;

    The quotations above taken directly from the ICO!!!8217;s CCTV Code of Practice state that if MET Parking Services wish to use ANPR cameras then they must undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary. It also states that MET Parking Services must regularly evaluate whether it is necessary and proportionate to continue using it.

    It therefore follows that I require MET Parking Services to provide proof of regular privacy impact assessments in order to comply with the ICO!!!8217;s CCTV Code of Practice and BPA!!!8217;s Code of Practice. I also require the outcome of said privacy impact assessments to show that its use has !!!8220;a lawful basis and is justified, necessary and proportionate!!!8221;.

    The ICO!!!8217;s CCTV Code of Practice goes on to state:

    !!!8220;5.3 Staying in Control

    Once you have followed the guidance in this code and set up the surveillance system, you need to ensure that it continues to comply with the DPA and the code!!!8217;s requirements in practice. You should:

    a) Tell people how they can make a subject access request, who it should be sent to and what information needs to be supplied with their request;!!!8221;

    !!!8220;7.6 Privacy Notices

    It is clear that these and similar devices present more difficult challenges in relation to providing individuals with fair processing information, which is a requirement under the first principle of the DPA. For example, it will be difficult to ensure that an individual is fully informed of this information if the surveillance system is airborne, on a person or, in the case of ANPR, not visible at ground level or more prevalent then it may first appear.

    One of the main rights that a privacy notice helps deliver is an individual!!!8217;s right of subject access.!!!8221;

    MET Parking Services have not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). This is in direct violation of the ICO!!!8217;s CCTV Code of Practice !!!8211; specifically with the extracts quoted above.

    As such, given the omissions and breaches of the ICO!!!8217;s CCTV Code of Practice, and in turn the BPA!!!8217;s Code of Practice that requires full ICO compliance as a matter of law, POPLA will not be able to find that the PCN was properly given.


    !!!8195;
    4) No evidence of Landowner Authority nor legal standing to form contracts or charge drivers - the operator is put to strict proof of full compliance with the BPA Code of Practice.

    I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give MET Parking Services any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, MET Parking Services lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require MET Parking Services to demonstrate their legal ownership of the land to POPLA.

    I contend that MET Parking Services is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

    I believe there is no contract with the landowner/occupier that entitles MET Parking Services to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to MET Parking Services to prove otherwise so I require that MET Parking Services produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between MET Parking Services and the owner/occupier, containing nothing that MET Parking Services can lawfully use in their own name as a mere agent, that could impact on a third-party customer.

    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.
    • P3dr0
    • By P3dr0 11th Aug 18, 7:32 PM
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    P3dr0
    Point 5 , 6 and 7 look like this (no pics as I am a newbie on this..!)

    5) Misleading system and signage at fault

    In the appeal rejection MET Parking Services have alleged that !!!8220;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.!!!8221;

    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.

    Nowhere on their sign and 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". This instruction suggests to me that the barrier won't lift without the presentation of a validated ticket, so their system and signage is confusing and therefore, at fault.

    As a result of this claim and during a visit to McDonalds restaurant at Gatwick Airport on the 17/07/2018 at approximately 13:15 during bright sunny spell, similar to the conditions present on the 30 May 2018 it was noticed that there is no signage at the car park entrance from the main road, nor are clear instructions regarding:

    a) What is expected from the drivers using these car park facilities
    b) How to validate the ticket
    c) Where to validate the ticket

    Text displayed by the entry and exit barrier screens were not clearly visible or readable under these conditions.

    Pics

    Two red signs displayed at this car park, can!!!8217;t be seen from every space in the car park from the driver's seat let alone read it. One of these signs is directly opposite to the exit barrier, however, a driver leaving the car park will be focusing his/her attention onto the car in front, pedestrians, the exit barrier and on-coming traffic direction, opposite where this sign is displayed.

    Pics

    The natural and sometimes almost instinctive reaction of many drivers when an automatic barrier does not open when the ticket is presented is to press the button requesting assistance. MET Parking Services system does not considers this natural reaction and conveniently interprets this reaction as a consent to pay a disproportionate car park charge (where 60 minutes free parking is actually granted to customers).

    During my 30 minutes visit, I witnessed a small queue leaving the car park and some drivers clearly experiencing difficulties leaving the car park: not surprisingly, all pressed the button at some point during this process.

    Not having a validated ticket yet, I approached the exit barrier by foot and the exit barrier lifted when I pressed the button. These actions surely should not be considered as my agreement to pay car park charges and illustrates how the system is setup to levy charges indiscriminately pressing a button at the exit barrier instead of raising charges for misuse/abuse of the facilities.

    No signs related to the car park validation requirements were noticed inside the restaurant, were the ticket validation takes place and nobody inside the restaurant offered to validate the car park ticket neither during my purchase, when I collected my meal or when I left the restaurant.

    Pics

    I also had fairly long conversation with the Manager, who was unhappy that these complaints were becoming a frequent occurrence. The Manager expressed his disgust with the way MET Parking Services are producing these PCN to legitimate patrons and driving away business and expressed his wish that unfair PCN be cancelled but added that there was nothing that he could do as the alleged !!!8220;offence had occurred too long ago!!!8221;.

    He also stated that the !!!8220;signage was confusing, not enough signs for the large car park area and not present inside the restaurant were tickets are actually validated!!!8221;. In fact, during my visit I saw no signs inside the restaurant and no staff offered or prompted to validate the car par ticket.

    !!!8195;
    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.

    Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious and parking terms and 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, some of the signs in this car park do not display the full terms and there are no details of the sum of the parking charge itself in large lettering at the entrance or at the exit barrier either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is 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.''

    Based on a recent visit to this car Park and 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:

    ''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.''

    ''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:

    !!!8195;
    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.

    !!!8195;
    7) Consumer Protection from Unfair Trading Regulations - breach

    I honestly believe that the driver of my vehicle has done nothing wrong as a matter of principle as they were genuine customers of the restaurant that day and they kept their stay to less than 30 minutes (copy of the credit card statement attached below).


    During the second reading of the Private Parking Code of Practice Bill on 2nd February 2018, more than one MP named and shamed ParkingEye and the unanimously damning Hansard quotes include: ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; ''willfully misleading; signage is a deliberate act to deceive or mislead''; ''confusing signs are often deliberate, to trap innocent drivers''; ''unreasonable; operating in a disgusting way''; ''appeals service is no guarantee of a fair hearing''; ''outrageous scam''; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.


    For the reason above, I therefore request that POPLA uphold my appeal and cancel this PCN.
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