Excel: PCN for parking in disabled bay at Peel Centre

[stevestocky2012]

hi,

my wife has received a PCN for mistakenly parking in a disabled bay at the Peel Centre car park in Stockport, a notorious car park for catching people out with fines. It was a genuine mistake, but I would say that, more so, Excel is at fault with the bay markings. I will appeal but not sure on what grounds?

She purchased a parking ticket as normal, and did not overstay.

The 14 days grace for the discounted (!) £60 fine has now passed, so we are looking at £100.

We have since returned to the parking bay at a quiet time, and the markings on the ground don't look as problematic when there are no cars about. But with cars obscuring your view it is a different scenario. She absolutely had no intention of taking up a disabled space. I have uploaded a picture we took of the bay on our follow up visit which shows the problem - you cant see the markings as you approach the bay in a car.

I am aware that Excel Excel dont offer POPLA but go through the Independent Parking Committiee / Independent Appeal Service.

I was thinking of using this by way of explanation/argument in my appeal letter/email, all of which is true!

The disabled bay markings on the ground were obscured from view and were not seen by the driver. The bay next to the one the driver parked in had clearly visible disabled markings, but the markings on the bay the driver used were different and not visible on approaching and entering the space. Why would the driver expect the markings to be different? The driver clearly had no intention of not abiding by the parking regulations in use at the car park, as a ticket was purchased as soon as a working ticket machine was found (the nearest machine was out of order at the time). The parking space the driver used was selected due to the additional space afforded by being next to what was obviously a disabled bay; the driver was accompanied by the driver’s 78 year old mother who struggles to get in and out of cars and has mobility probles (although not a disability), in addition to a near-2 year old child.

Welcome any thoughts?

thanks

[mystery1]

Re: Excel: PCN for parking in disabled bay at Peel Centre

That photo makes it look like you have deliberately taken it so the end of the bay is hidden.

The signs at the Peel centre are horrific so get pictures of them.

Complain loudly to retailers who were visited and the land owners.

http://legalbeagles.info/forums/show...member-tickets

M1

[stevestocky2012]

Re: Excel: PCN for parking in disabled bay at Peel Centre

That photo makes it look like you have deliberately taken it so the end of the bay is hidden.

The signs at the Peel centre are horrific so get pictures of them.

Complain loudly to retailers who were visited and the land owners.

http://legalbeagles.info/forums/show...member-tickets

M1

Thanks for responding. The photo was just to demonstrate the actual view my wife had at the time, and shows that the signage is not visible from all angles. Perhaps i should take another showing the disabled markings as well?

I have followed the thread to the suggested appeal text, but this says to send the wording I've pasted below when we received the notice to keeper (NTK). At the moment all we have is the PCN, so do we hang fire until the NTK, barring complaining to the shop visited at the time? Cant see much point in complaining to the landowner - the car park doesn't promote who that is, although obvious by the name (Peel....).

Bit confused, sorry!

Your suggested text:

Dear Sirs,


I, as registered keeper, wish to invoke your appeals procedure. The driver .................... Insert something here (see below)


I note that the notice to keeper is fundamentally flawed when compared to the protection of freedoms act 2012 schedule 4 paragraphs 7/8.



Yours sincerely

[mystery1]

Re: Excel: PCN for parking in disabled bay at Peel Centre

Yes, hang fire until a NTK arrives.

M1

[stevestocky2012]

Re: Excel: PCN for parking in disabled bay at Peel Centre

hi, I have the NTK from Excel and they are unable to accept my appeal. In their letter they say that "we [...Excel...] are not seeking to rely on POFA 2012" and that they are "unable to accept our mitigating circumstances for parking in a disabled space without displaying a valid blue badge ... and could have found alternative parking arrangements."

Looks like I now need to appeal to the IAS.

Any help / guidance much appreciated.

thanks
steve

[mystery1]

Re: Excel: PCN for parking in disabled bay at Peel Centre

Register an intent to appeal www.theias.org but don't put in an appeal or upload documents. Once you get the prima facie case we'll see what it says.

M1

[stevestocky2012]

Re: Excel: PCN for parking in disabled bay at Peel Centre

Hi, I went through the register intent to appeal process on the IAS website but not sure what to do now. The page I have landed on is now asking for the basis of my appeal including providing any evidence. And I haven't had a response from IAS, the prima facie case as you put it. Do I proceed now and submit the basis of my appeal ?

thanks

[mystery1]

Re: Excel: PCN for parking in disabled bay at Peel Centre

Well it appears they have changed their appeals process somewhat since i last looked. You now get a chance to appeal, see their case then reply which is quite a change from how it used to be.

Now you need to appeal. So stuff like the crap markings, not following keeper liability requirements etc should go in the appeal. Any point you raise needs evidence. You say the markings are poor so you need the photos. You say PoFA non compliance you need to send the notice etc.

Then the operator responds and you can respond to the responce.

https://www.theias.org/userguide/article/72

M1

[stevestocky2012]

Re: Excel: PCN for parking in disabled bay at Peel Centre

hi,

I have received Excel's 'prima facie' case and have 5 working days to respond. Not sure what grounds, if any, I now have to continue with this appeal? The case from Excel is below.

Can you help at all please?

thanks

The operator made their Prima Facie Case on 07/09/2016 11:55:26.

The operator reported that...

The appellant was the driver.
The appellant was the keeper.
ANPR/CCTV was used.
The Notice to Keeper was sent on 29/06/2016.
A response was recieved from the Notice to Keeper.
The ticket was issued on 13/05/2016.
The charge is based in Contract.

The operator made the following comments...

1. The Peel Centre Car Park is private land which motorists are allowed to enter to park their vehicles provided that they abide by any displayed conditions of parking.

2. There are 86 signs on site,
including 5 Entrance Signs (2000mm x 1000mm), 29 Information Signs (1220mm x 660mm), 17 Tariff Boards (1200mm x 1000mm) and 14 “Pay Here” and 21 Disabled P&D signs erected at a height of approximately 2.5 metres, situated at key locations throughout the area. Site photographs and the Site Overhead supplied confirm that the sign can be observed at the entrance and throughout the car park.

3. The signage (supplied) is clear an unambiguous and states: “Pay & Display Car Park”, “Customers have 15 minutes from entering the car park to purchase a valid Pay & Display ticket”, “It is important that you enter the FULL and ACCURATE REGISTRATION NUMBER of the vehicle when making payment” and “Marked disabled bays are for valid disabled blue badge holders only. A valid blue badge must be displayed in the front windscreen of the vehicle with the details clearly visible at all times”.

4. Our Patrol Officer (PO) observed the vehicle parked in a marked disabled bay without it displaying disabled persons Blue Badge for a period of 5 minutes before issuing the Parking Charge Notice (PCN); stating “Parked in disabled bay without valid disabled badge on display”. We refer to the reverse of the PCN where the they have completed the checklist and signed their statement as a true and accurate record of facts.

5. The photographs supplied, which were taken at the time, clearly show the appellant’s vehicle parked as stated by the Patrol Officer.

6. In their appeal to Excel Parking Services, the appellant states “The driver […] saw no signs of the alleged breach.”

7. Excel Parking Services is not pursuing this matter under Schedule 4 of the Protection of Freedoms Act (POFA) 2012.

8. In their appeal to the IAS, the appellant declines to name the driver. In this case, citing the case of Elliott v Loake 1982, we are relying on the presumption, on the balance of probability, that the appellant, as registered keeper of the vehicle in question, was the driver of the vehicle on the date in question and we support this by the knowledge the appellant has in relation to the circumstances ("events of the day") in relation to this Parking Charge Notice. Furthermore, the appellant does not deny being the driver nor is it stated that they do not know who the driver is.

9. In their appeal to us the IAS, the appellant has stated that the bay markings were unclear.

10. The contravention photographs show that the disabled bay in which the appellant’s vehicle was parked is clearly and adequately marked and would have been visible to the driver on approach; this is further evidenced by the Peel Centre disabled bay photographs supplied.

11. In their appeal to the IAS, the appellant stated that “the Parking Attendant” could have instructed the driver accordingly. Our Patrol Officers patrol the car park to enforce the Terms and Conditions of parking displayed, and to issue PCNs for contraventions of the Terms and Conditions, they are not onsite to give parking advice.

12. When entering this private car park it is solely the responsibility of the motorist to familiarise themselves with, and to comply with the Terms and Conditions displayed. The signage supplied clearly states that any motorist breaching the Terms and Conditions displayed will be liable for a PCN.

13. A helpline telephone number is displayed on all of our signage, for any motorist who has any queries, or who is experiencing difficulty; in this case this was not utilised by the appellant.

14. The appellant parked in a disabled space without clearly displaying a valid disabled person's badge and became liable for the Parking Charge Notice issued as per the Terms and Conditions displayed.

[mystery1]

Re: Excel: PCN for parking in disabled bay at Peel Centre

Do you have the signs and pictures they sent ? Can you sanitise and post up ?

M1

[stevestocky2012]

Re: Excel: PCN for parking in disabled bay at Peel Centre

hi,

I have hopefully managed to post up an attachment with the pictures. Deadline is looming for IAS response (tomorrow!), so appreciate your help with this.

many thanks
steve

[mystery1]

Re: Excel: PCN for parking in disabled bay at Peel Centre

No signs ?

M1

[stevestocky2012]

Re: Excel: PCN for parking in disabled bay at Peel Centre

sorry, didn't realise that is what you meant - see attached

[mystery1]

Re: Excel: PCN for parking in disabled bay at Peel Centre

I'll add my input after tonight's footie.

M1

[mystery1]

Re: Excel: PCN for parking in disabled bay at Peel Centre

For IAS appeals you need evidence for everything. Copy these pics/bits and label appropriately inserting the label in the appeal.Their are 1/2 red bits that you need to decide if appropriate too, especially the registered keeper was not the driver which i'd only leave in if true.

You can add your pic about bad marking if you wish.

M1


Sign from Beavis car park Cambridge.





Supreme court tweet.




I wish to respond to the operators prima facie case as follows.

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: Supreme court tweet


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.


The 'Beavis case' sign as a comparison to the signs under dispute in this case. 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 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.

Yellow writing on a blue background is difficult to read.


It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the IPC 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.






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.




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 IPC 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.






The operator states they are not using PoFA 2012 schedule 4.

The operator states they rely on the "reasonable assumption" that the driver was the registered keeper and cites Elliot v Loake.

Elliott v Loake [1983] Crim LR 36.pdf

Clearly this case does not set the precedent they seem to think. There was other evidence aside from ownership which allowed the court to find as they did. This included the owners statements that they had the keys, did not let anyone use the car, forensic evidence which placed the car at the scene and a statement that the vehicle had not been stolen as well as lies from the owner. This is far removed from stating that the registered keeper is assumed to be the driver because your client has no idea who was driving.




Henry Michael Greenslade QC, the former lead adjudicator for Popla said, whilst still in his position,

popla_annualreport_2015.pdf




''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.''




Obviously there is a degree of common sense to be applied also, why would the government bring in legislation to provide for keeper liability if one could just assume it was ? It is clear that parliament believe that Elliot v Loake was not suitable and that they felt the need to hold registered keepers liable but only with strict conditions attached.



The registered keeper/appellant was not the driver.