Hi
attempting to put a POPLA appeal together which needs to be sent off to them by Friday.
As we're unsure of who the land owner might even be in this case yet, we've started with the signage as our 1st point.
Any advise on how to Draft this into some sort of order would be gratefully appreciated, so we can get it to be sent off.
1. 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 £85, 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/AkMCNIn 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:
http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpgThis 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:
http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htmAs 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.htmlThis 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.
Please see the parking sign notice for …………….. below.
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2. The NtK is not strictly PoFA compliant as there is no "invitation", nor any synonym of the word, for the keeper to pay the charge.
Paragraph 9(2)(e)(i) of Schedule 4 of the Protection of Freedoms Act 2012 states that the notice must explicitly invite the keeper to pay the unpaid parking charges. The wording must clearly convey this invitation, and mere implication or indirect suggestions are insufficient.
The act requires strict compliance, meaning that any failure to fully incorporate this invitation could render the notice non-compliant. Partial or even substantial compliance is not sufficient.
As the PCN is not fully compliant, the keeper cannot be liable for the charge. I, as the keeper, have no legal obligation to identify the driver to an unregulated private parking company
Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.
Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to:
“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”
Euro Car Parks’ NtK simply claims “the vehicle was parked at [enter location].”
The NtK separately states that the vehicle “entered …………… at [xxxxx and departed at [xxxxxxx]”. At no stage do Euro Car Parks explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.
Euro Car Parks NtK states “we are using cameras to capture images of vehicles entering and leaving the car park to calculate their length of stay”. It is not in the gift of Euro Car Parks to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.
By virtue of the nature of an ANPR system recording only entry and exit times, Euro Car Parks are not able to definitively state the period of parking.
I require Euro Car Parks to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.
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3. The ANPR System is Neither Reliable nor Accurate
The Euro Car Parks Notice to Keeper (NtK) shows no parking time, merely two
images of a number plate corresponding with that of the vehicle in question.
There is no connection demonstrated whatsoever with the car park in question.
The Notice to Keeper states:
“On 28/5/24 the vehicle: xxxxxxx entered ……………, at
xxxxxx and departed at xxxxx on xxxxxxx.”
These times do not equate to any single evidenced period of parking. By EuroCar Parks own admission on their NtK, these times are claimed to be the entry
and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed.
Since there is no evidence to actual parking times this would fail the requirements
of POFA 2012, paragraph 9(2)(a), which states;
“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”
Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order.
I require ECP to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.
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4. The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be
used for.
The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from
Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras.
Paragraph 21.1 of the BPA Code of Practice advises operators that they may use
ANPR camera technology to manage, control and enforce parking in private car
parks, as long as they do this in a reasonable, consistent and transparent manner.
The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by
ANPR cameras for.
Euro Car Parks’ signs do not comply with these requirements because these carparks signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and
Consumer law.
The Euro Car Parks’ main sign in the ………………..car park (see Figure 1) states:
“We are using cameras to capture images of vehicle number plates and
calculate the length of stay”
Specifically missing from this sentence is the vital information that these camera
images would be used in order to issue Parking Charge Notices. There is
absolutely no suggestion in the sentence above that the cameras are in any way
related to Parking Charge Notices. The only reference to Parking Charge
Notices on Euro Car Parks’ sign makes no mention of Parking Charge Notices
being issued as a result of images captured by the ANPR cameras and instead
merely states (see Figure 1):
“This car park is patrolled. Please observe the following conditions to avoid a parking charge notice of £85”
In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.
This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68:
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.
and Paragraph 69:
Contract terms that may have different meanings:
(1) If a term in a consumer contract, or a consumer notice, could have different
meanings, the meaning that is most favourable to the consumer is to prevail.
Withholding material information from a consumer about the commercial (not
security) purpose of the cameras would be considered an unfair term under The
Consumer Protection from Unfair Trading Regulations 2008 because the
operator 'fails to identify its commercial intent’:
http://www.legislation.gov.uk/uksi/2008/1277/contents/madeMisleading omissions: 6. - (1) ''A commercial practice is a misleading
omission if, in its factual context, taking account of the matters in paragraph
(2) -
(a) the commercial practice omits material information,
(b) the commercial practice hides material information,
(c) the commercial practice provides material information in a manner
which is unclear, unintelligible, ambiguous or untimely, or
(d) the commercial practice fails to identify its commercial intent, unless
this is already apparent from the context, and as a result it causes or is
likely to cause the average consumer to take a transactional decision he
would not have taken otherwise.''
5. No evidence of Landowner Authority
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
