Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • Chocolate85
    • By Chocolate85 11th Aug 18, 1:35 PM
    • 3Posts
    • 0Thanks
    Chocolate85
    Popla stage Moorgate retail park vs parkingeye
    • #1
    • 11th Aug 18, 1:35 PM
    Popla stage Moorgate retail park vs parkingeye 11th Aug 18 at 1:35 PM
    Hello

    I am hoping you can help me. I recently received a PCN for staying an hour over the allotted 2 hour limit. I got confused and thought it was a free 3 hour car park but obviously I was wrong.

    I appealed with the template in the newbies thread but have just been rejected and given a popla code.
    I have scrawled through the forum to find a similar situation to mine to formulate an appeal but the nearest I can find is from 2016 and the newbies thread says do. Not use before 2017 so I’m struggling a bit. I have formulated a bit of a popla but I’m finding it all really confusing. I’m currently going through chemotherapy and so my brain can’t take in information like it’s used to.

    Here is what I have so far...

    Inadequate Signage
    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 - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - 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:

    ‘Link here’

    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    ‘Link here’

    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

    ‘Link here’

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

    ‘Link 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:

    ‘Link 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:

    ‘Link here’

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


    The 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. 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.''

    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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

    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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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



    What else needs to go in? Am I missing anything vital out? I have been to the car park and taken necessary photos of the signs. I can’t post links here due to being a new user. If I am missing something out could I please be directed to relevant posts to look at to find a popla appeal to copy. I have put in lots of keyword searches of parkingeye popla Moorgate etc but just can’t find anything recent.

    Thanks in advance!
Page 1
    • Umkomaas
    • By Umkomaas 11th Aug 18, 1:55 PM
    • 19,676 Posts
    • 31,148 Thanks
    Umkomaas
    • #2
    • 11th Aug 18, 1:55 PM
    • #2
    • 11th Aug 18, 1:55 PM
    Welcome to the forum, sorry to hear you are undergoing chemotherapy. We will try to help as much as we can.

    Just a few basic questions:

    1. Date of 'contravention?
    2. If a windscreen ticket, did you also receive a letter through the post (Notice to Keeper - NtK)? If so date of issue of the NtK. Date of receipt?
    3. Or was your first knowledge of the parking charge via a letter (NtK) in the post? If so, date of issue of the NtK? Date of receipt?
    3. Which private parking company (PPC) is involved?
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    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.
    • Chocolate85
    • By Chocolate85 11th Aug 18, 4:17 PM
    • 3 Posts
    • 0 Thanks
    Chocolate85
    • #3
    • 11th Aug 18, 4:17 PM
    • #3
    • 11th Aug 18, 4:17 PM
    Hello thank you for your reply!

    Date of contravention was 23rd July. Letter got issued 26th July and arrived with me 29th July. It was ANPR camera so no windscreen ticket.

    Car parking company is parking eye. The back of the NTK does have the paragraph about POFA 2012 and 29 days.
    • Umkomaas
    • By Umkomaas 11th Aug 18, 5:16 PM
    • 19,676 Posts
    • 31,148 Thanks
    Umkomaas
    • #4
    • 11th Aug 18, 5:16 PM
    • #4
    • 11th Aug 18, 5:16 PM
    The back of the NTK does have the paragraph about POFA 2012 and 29 days.
    As a newbie, that shows you've been doing some research - well done! No Keeper Liability was the angle I was testing by asking you for the dates. It's a sure fire winner at POPLA if the PPC hasn't hit the required timescales - but unfortunately not in this case.

    And ParkingEye's NtKs (other than when they miss the PoFA warning) are generally compliant.

    Have you contacted the landowners and asked them to intervene? They do have responsibilities to provide 'suitable adjustments' for those with disabilities or serious conditions likely to last more than 12 months under the Equality Act 2010. A suitable adjustment might be extra time to return to the car.

    I'd read up on the EA and put pressure on the landowner, because I think you'll find more 'give' in them than in PE. Emphasise your condition and your chemotherapy treatment, which means some deterioration in your concentration, the speed at which you can walk, the need to have rests when walking .... you get my drift, lay it on thick and press them to get PE to cancel your ticket. There will almost certainly be a clause in their contract with PE allowing them to do this.

    I see you've started on your POPLA appeal. Have you done a forum search on 'ParkingEye Moorgate POPLA' in order to check whether other appeals have been placed on the forum, then you could check what points have helped appellants previously.

    HOW TO USE THE FORUM SEARCH FUNCTION:

    Use the Forum Jump button (one near the top and one near bottom of this page) to get back to the forum thread list. Just above the threads, on the right, is a heading along a line, next to forum tools, called 'Search this Forum'. Put your key word(s) in and change the default search from 'Show Threads' to 'Show Posts'.
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    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.
    • Chocolate85
    • By Chocolate85 11th Aug 18, 5:28 PM
    • 3 Posts
    • 0 Thanks
    Chocolate85
    • #5
    • 11th Aug 18, 5:28 PM
    • #5
    • 11th Aug 18, 5:28 PM
    Thank you! I didn’t realise I could use that under the equality act. I will definitely get in touch I did look it up and find the landowners name so will get in touch and lay it on thick.
    In all fairness it does make me really breathless and I do struggle to walk very far now!

    I tried to do a search for parkingeye Moorgate popla but they are all older than 2017 and I read that they would be pointless as out of date now. I didn’t change it to show posts instead of threads so will give that a go now.
    • The Deep
    • By The Deep 11th Aug 18, 5:31 PM
    • 10,238 Posts
    • 10,129 Thanks
    The Deep
    • #6
    • 11th Aug 18, 5:31 PM
    • #6
    • 11th Aug 18, 5:31 PM
    Have you written about the ticket on social media, a bad review on Facebook , TripAdvisor, ot the park's webside often does the trick, as doo complaints to individual retails, threatening to boycott the site.

    Also, complain to your MP, PPCs should not tell you how long you should take to buy a carpet, or have a meal.

    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.
    You never know how far you can go until you go too far.
    • Redx
    • By Redx 11th Aug 18, 5:53 PM
    • 19,586 Posts
    • 24,891 Thanks
    Redx
    • #7
    • 11th Aug 18, 5:53 PM
    • #7
    • 11th Aug 18, 5:53 PM
    Thank you! I didn!!!8217;t realise I could use that under the equality act. I will definitely get in touch I did look it up and find the landowners name so will get in touch and lay it on thick.
    In all fairness it does make me really breathless and I do struggle to walk very far now!

    I tried to do a search for parkingeye Moorgate popla but they are all older than 2017 and I read that they would be pointless as out of date now. I didn!!!8217;t change it to show posts instead of threads so will give that a go now.
    Originally posted by Chocolate85
    not all the appeal points will be pointless , although some of them may need updating

    read recent 2018 PE popla appeals too, by studying the decisions thread at the top of this forum, working backwards from the last post, studying any relevant thread, especially any successes

    see also post #3 of the NEWBIES FAQ sticky thread too, where the following points should be noted

    NO LANDOWNER AUTHORITY
    POOR AND INADEQUATE SIGNAGE
    NOT THE SAME AS BEAVIS
    ANY BPA COP FAILURES
    ANPR ISSUES

    etc
    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
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

595Posts Today

6,029Users online

Martin's Twitter