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Premier Park - Driver left site - No contest at POPLA
Raxiel
post Tue, 6 Mar 2018 - 13:46
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Original Thread: http://forums.pepipoo.com/index.php?showto...117526&st=0

Markham Retail Park, Chesterfield. Just before Christmas 2017.

The Operator (Premier Park Ltd) claimed the driver left site, in breach of the terms.

A POPLA appeal was submitted by the keeper on the following grounds:
Site boundary unclear
No evidence the driver left site
No photo evidence of the vehicle in contravention of terms.
Landowner authority
Signage

The keeper was not the driver, and not present at the time of the alleged contravention. The appeal was worded with that in mind. (Lack of liability under POFA:2012 was not raised as an appeal point because the technical failings in the PCN weren't' considered strong enough)

The operator did not contest the appeal, and the PCN was cancelled.

Full appeal text below:

QUOTE
POPLA Appeal Code xxxxxxxxxx
Vehicle Registration Number xxxxxx
PCN Reference xxxxxx
Issued by Premier Park Limited (PPL)


As the registered keeper of the above vehicle, I wish to appeal the parking charge notice issued against it. I was neither the driver nor an occupant at the time the alleged contravention took place. I would like to have the parking charge notice cancelled based on the following grounds:

1) No site boundary defined.
2) No evidence that the driver left 'the site'.
3) No photo evidence of the vehicle in contravention of terms.
4) No landowner authority
5) Signage

1) No Site Boundary defined
The notice to keeper states that the vehicle driver left the site. Therefore for this reason a parking charge of £100 is due.

No explanation has been provided as to what constitutes leaving the site and it has not been established whether the driver was on site all along. The evidence they've added online is simply a photograph of the signage and pictures of the car.


Fig 1: Operator Photo

Fig 2: Operator Photo

Fig 3: Operator Photo

If no such sign nor evidence exists then I contend that the driver could not have known where the car park site boundary began and ended and in the absence of evidence I deny that there was any contravention. I say there was no contract formed with the driver to pay a charge in 'exchange' for going off site; there was no consideration, offer nor acceptance and no site boundary defined.


Fig 4: A map of the site, with store entrances identified with red arrows

Fig 5: Image of the western entrance to SCS, entrance to car park behind.


A driver entering the site from Hipper Street South must pass a prominently signed entrance on the western side of the SCS store on site. A driver parking on the southern side of the car park would not see any other entrances and could reasonably assume the western entrance is the one they are intended to use, and that Hipper Street South is not 'out of bounds'.
It is not possible for a single operative to observe all four store entrances on site, and an operative based within the car park would lose sight of a driver or occupant intending to use the western SCS entrance and could not divine their intended destination.

2) No evidence that the driver left 'the site'
The notice to keeper states that the vehicle driver left the site. Therefore for this reason a parking charge of £100 is due.
I require evidence from PPL, which shows the vehicle driver leaving the site. Such evidence should include photographs of the contravention and a site map and a picture of the signage that would have communicated to the driver the defined boundary of the site they are alleged to have left.

The burden of proof shifts to PPL to prove otherwise and to explain why their attendant (presumably) watched a driver or occupant walk towards the edge of an undefined boundary, yet made no attempt to stop/warn the driver nor even ascertain if a passenger had already been dropped at the door of the premises, nor confirm if they intended to use the western entrance of SCS. The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.5.2012:

District Judge McIlwaine stated 'you say he left the premises...where does the premises start and where does the premises finish?...there is a duty to mitigate the loss.'


In this case now under POPLA appeal, I contend that PPL have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.

3) No photo evidence of the vehicle in contravention of terms
The BPA Code of Practice point 20.5a stipulates that: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The parking charge notice in question contains two photographs of the vehicle (Fig 1 & 2). They do clearly show the vehicle present in the car park, however they do not present any evidence that the vehicle was parked in an unauthorised way as required in the BPA Code of practice.

4) No landowner Authority
I question Premier Park Ltd’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put PPL to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question PPL’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that PPL is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that PPL are certainly not empowered by the landowner to sue customers and visitors in a free of charge car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“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.''

I put PPL to strict proof of compliance with all of the above requirements.

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).
Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow PPL to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers setting foot beyond the boundary of a car park.

I require PPL to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner , not merely a ‘standard business agreement’ with a non-landholder managing agent which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013

5) 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

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:


Fig 6 : UK Supreme Court public comment on signage in Beavis Case

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:


Fig 7: ‘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 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.

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. Indeed I note that additional signage warning drivers that they are not to leave the site has been provided since the alleged breach, suggesting an acknowledgement by the operator that the previous notices were inadequate. 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.


Fig 8: Additional signage added to site since the alleged breach.

The letters seem to be no larger than .25 font size going by this guide:

http://www-archive.mozilla.org/newlayout/t...s/sec526pt2.htm

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

http://www.signazon.com/help-center/sign-l...lity-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-Dimensio...75068392/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.

I respectfully request that this parking charge notice appeal be allowed and await your decision.


Notes:
A couple of points specific to this site, one of the stores had an entrance that could be considered outside the site (unclear boundary), additional signage was added after the PCN was issued, suggesting the existing signage was considered inadequate (signage).
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