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  • FIRST POST
    • notparked
    • By notparked 14th Aug 18, 4:54 PM
    • 49Posts
    • 31Thanks
    notparked
    POPLA appeal review please
    • #1
    • 14th Aug 18, 4:54 PM
    POPLA appeal review please 14th Aug 18 at 4:54 PM
    Hi, I am appealing PCN from Euro Car parks at Festival Park Etruria, on behalf of some one else.
    Can someone find time to review my appeal below please.
    It is based on the template from the NEWBIE Thread #3 and a successful appeal from the POPLA results posts.




    POPLA Verification Code: xxxx
    Vehicle Registration: XXXX

    I the registered keeper of this vehicle, received a letter dated 26/07/2018 acting as a notice to the registered keeper. My appeal to the Operator !!!8211; Euro Car Parks !!!8211; was submitted and acknowledged by the Operator on 31/07/2018 and rejected via a letter dated 08/08/2018. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

    1. The entrance signs are inadequately positioned and lit and 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

    2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

    3. No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    4. No Evidence of Period Parked - NtK does not meet PoFA 2012 requirements

    5. Vehicle Images contained in PCN: BPA Code of Practice !!!8211; noncompliance

    6. The ANPR System is Neither Reliable nor Accurate

    7. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for

    8. No Planning Permission from Stoke-on-Trent City council
    for Pole-Mounted ANPR Cameras and no Advertising Consent for signage.


    1. The entrance signs are inadequately positioned and lit, 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:

    http://imgur.com/a/AkMCN

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


    Figure 1 below is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    link

    Figure 1: Beavis sign

    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.



    Here, the signs are sporadically and sparsely 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.

    Euro Car Parks!!!8217; car park entry sign at the Festival Retail Park Etruria, is inadequate and illegible in a
    number of ways, not least because of the number of other signs situated in close proximity.
    These signs have larger text, are more noticeable and distract from reading the smaller Euro car
    parks sign.(see Figure 2).

    link
    Figure 2 Festival Retail Park sign close-up

    The image in Figure 2 shows a close up of the main car park sign

    Figure 2 clearly shows that Euro Car Parks!!!8217; signage does not comply with the BPA
    Code of Practice (18.3), specifically:

    !!!8220;Signs must be conspicuous and legible, and written in intelligible language, so that they
    are easy to see, read and understand.!!!8221;

    There is no mention of a penalty charge on this sign.

    Areas of this site are unsigned and there are no full terms displayed clearly, indicating non-compliance with the BPA Code of Practice (18.3) which states:

    !!!8220;Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.!!!8221;

    Recently (September 2017) a not dissimilar POPLA appeal versus Euro Car Parks (car park: Kay Street, Bolton) was successful as the Assessor was not satisfied that adequate signage was placed throughout the site and therefore compliant with section 18.3 of the BPA Code of Practice.


    The BPA Code of Practice (Appendix B) sets the requirements for entrance signs. Following further research (on foot,), it is not disputed that Euro Car Parks entrance sign meets these requirements in terms of wording/layout !!!8211; in fact it is almost a direct copy of the example the BPA provide. What is disputed are other requirements the BPA sets in Appendix B, specifically:

    1. The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.
    2. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual.

    In disputing points 1 and 2 above, the relevant entrance sign in this appeal case is not readable by drivers without their need to look away from the road ahead, nor is it readable and understandable at all times. It is not directly lit nor does it benefit from lighting used for the parking area. It may well be made of a retro-reflective material but this is irrelevant in this case as the positioning of the entrance sign is as such that vehicle headlights will never shine on it sufficiently so as to illuminate it.


    Figure 3: Entry sign

    In Figure 3 above the entrance sign to the left of the entrance (from the perspective of a vehicle entering the car park) is mounted high up and it is difficult to see from a driver’s perspective when entering the car park. The text is very small and even if it were visible to the driver, it would be difficult to read whilst in a moving vehicle.
    The entrance sign states that terms and conditions apply and refers to other signage. As previously discussed, the issue with this entrance sign is non-compliance in terms of wording/format, positioning, lack of illumination and lack of information especially a penalty charge.
    The entrance sign to the car park is wholly inadequate

    Figure 4 below shows an area of the car park with no signs visible whatsoever.


    Figure 4. No visible parking signs.

    Figure 4 provides clear evidence as to the lack of legible or even visible signage at this part or the car park. There are other areas also.
    It is therefore suggested once again that Figure 4, serves to reinforce the earlier point made regarding non-compliance with the BPA Code of Practice (18.3), specifically:

    “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

    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, this sign does not clearly mention the parking charge
    and is hidden in smaller print on some of the other 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:

    http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

    http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

    ''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:

    http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

    ''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:

    http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

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

    So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require 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.



    In addition, the BPA Code of Practice (18.1) clearly states that:

    “A driver who uses your private car park with your permission does so under a licence or
    contract with you….In all cases, the driver’s use of your land will be governed by your terms and
    conditions, which the driver should be made aware of from the start.”

    Bearing this paragraph in mind, there was categorically no contract established between the driver and Euro Car Parks. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated.
    Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.

    When the driver arrived at the car park it was impossible to read and understand the terms and conditions being imposed, whilst in a moving car at a busy roundabout. Upon further research it is apparent that the initial entrance signs in the car park are poorly located - too high, on the passenger side of the vehicle and not visible from driver’s side unless the driver takes their attention off the road ahead and turns their head 90 degrees to the left. As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge.



    # END of Appeal point 1



    I am not posting points 2 to 7 as they are copied from the template with dates and places amended.


    Point 8 is


    8. No Planning Permission from Stoke-on-Trent City Council for Pole-Mounted ANPR Cameras and no Advertising Consent for signage

    I request Euro Car Parks provide evidence that the correct Planning Applications were submitted (and approved) in relation to the pole-mounted ANPR cameras and that Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates (22/07/2018).
    Euro Car Parks should prove that they are/have not been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment (pole mounted ANPR cameras) for which no planning application had been made.



Page 2
    • Umkomaas
    • By Umkomaas 12th Oct 18, 5:32 PM
    • 20,518 Posts
    • 32,433 Thanks
    Umkomaas
    email sent to Steve.c
    Originally posted by notparked
    Keep us updated please.
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    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.
    • notparked
    • By notparked 12th Oct 18, 9:02 PM
    • 49 Posts
    • 31 Thanks
    notparked
    Hi Steve,

    popla ref. xxxxxxx was successfuly appealed due to
    inadequate signage,

    You will appreciate that as POPLA is an independent service operated by Ombudsman Services, we do not have access to the appeals records and nor should we have. Please provide Emma with a copy of the assessment made by POPLA in this instance. We will also need to know the details of the location please.

    Can you advise what steps will be put in place to improve the signage,
    how the operator will ensure compliance.

    We will ask one of our Area Managers to visit the location and inspect the signage - quantity and signage content. Upon completing the inspection, we will contact Euro if we believe that changes need to be made to the signage at the location and give them a deadline for these to be made.

    Also will ALL tickets issued at least since THIS ticket was issued be
    refunded if paid, cancelled if not, because it is clear the operator has
    failed in their obligatons

    Tickets will not be cancelled.
    • beamerguy
    • By beamerguy 12th Oct 18, 9:10 PM
    • 9,631 Posts
    • 12,701 Thanks
    beamerguy
    Hi Steve,

    popla ref. xxxxxxx was successfuly appealed due to
    inadequate signage,

    You will appreciate that as POPLA is an independent service operated by Ombudsman Services, we do not have access to the appeals records and nor should we have. Please provide Emma with a copy of the assessment made by POPLA in this instance. We will also need to know the details of the location please.

    Can you advise what steps will be put in place to improve the signage,
    how the operator will ensure compliance.

    We will ask one of our Area Managers to visit the location and inspect the signage - quantity and signage content. Upon completing the inspection, we will contact Euro if we believe that changes need to be made to the signage at the location and give them a deadline for these to be made.

    Also will ALL tickets issued at least since THIS ticket was issued be
    refunded if paid, cancelled if not, because it is clear the operator has
    failed in their obligatons

    Tickets will not be cancelled.
    Originally posted by notparked
    Is that really what Steve Clark said .......

    How is he going to prove to you that an inspection
    was done because the BPA can no longer be trusted

    The area manager could say anything to support the parking
    scammers, they are a BPA member after all.

    The BPA is long overdue for the rubbish tip but they
    have to get out of the Gobi desert first
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Umkomaas
    • By Umkomaas 12th Oct 18, 9:44 PM
    • 20,518 Posts
    • 32,433 Thanks
    Umkomaas
    You might want to put this to your MP (and the MP in whose constituency the car park is based - if different to your own MP) and ask if they would get involved as people are being unfairly targeted and pursued when the industry's own independent appeals service says that the signage (the legal contract between the PPC and motorist) is inadequate.

    Ask if they can intervene to get all tickets there cancelled and any monies already paid, refunded.

    PPCs cannot continue to get away with no sanction, and continue to act with impunity when clearly they have been proved not to have met the basic (and legal) standards prescribed by their industry body.
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    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.
    • notparked
    • By notparked 14th Oct 18, 9:42 PM
    • 49 Posts
    • 31 Thanks
    notparked
    Yay!

    Now, complaint to the BPA that an operator is issuing tickets at a site with inaderuqate signage, as confirmed by POPLA. You want to know what steps willb in place to improve the signage, how the operator will ensure compliance, and that ALL tickets issued at least since YOUR ticket was issued are refunded if paid, cancelled if not, because it is clear the operator has failed in their obligatons.
    Originally posted by nosferatu1001

    hi , is there way of keeping pics of signage which have been deemed by POPLA as non-compliant , similar to the templates on the NEWBIE sticky thread?
    Pics could then be used in POPLA appeals quoting names of assessors who had upheld appeals due to signage,
    • Umkomaas
    • By Umkomaas 14th Oct 18, 9:53 PM
    • 20,518 Posts
    • 32,433 Thanks
    Umkomaas
    hi , is there way of keeping pics of signage which have been deemed by POPLA as non-compliant , similar to the templates on the NEWBIE sticky thread?
    Pics could then be used in POPLA appeals quoting names of assessors who had upheld appeals due to signage,
    Originally posted by notparked
    Yes, you can always start a new thread and keep it updated a bit like Aaron Aadvark did with the POPLA Decisions sticky and Coupon-mad did with the NEWBIES FAQ sticky. Easy to set up. Needs commitment to maintain.

    Up for it?
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    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.
    • notparked
    • By notparked 15th Oct 18, 3:01 PM
    • 49 Posts
    • 31 Thanks
    notparked
    Yes, you can always start a new thread and keep it updated a bit like Aaron Aadvark did with the POPLA Decisions sticky and Coupon-mad did with the NEWBIES FAQ sticky. Easy to set up. Needs commitment to maintain.

    Up for it?
    Originally posted by Umkomaas

    I could start a new thread but how do I publish the pics of signs?
    Is it a case of quoting the links to tinypics for e.g. as I did in some of my posts?
    How is the thread made a sticky?

    It looks as though 'posters' update the 'decisions' thread.
    What else would be involved to maintain the thread?

    I could log on a few times a week and add new pics if/when provided by posters , what else would be needed?
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