Newbie questions

Great! Thank you. I have my draft POPLA above, will take more pictures tomorrow and embed them into my draft to post on here (I think somebody has suggested to use Photobucket or the like). Think I may need to remove keeper liability too because their PCN seems complaints with POFA

POPLA Appeal - Date xxxxxxxx
PCN Number - xxxxxxxx
POPLA Code - xxxxxxxx

Dear POPLA Adjudicator,

I am the registered keeper of vehicle XXXXXXX and am appealing a parking charge from Britannia Parking.

On the XXXXXXX, Britannia Parking issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system

As the keeper of the vehicle that is related to this PCN, I wish to appeal the purported overstay of x minutes that Britannia Parking has issued against said Vehicle. I believe that the parking charge should be cancelled, due to the facts explained in the below text.

1) 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, and none will be made. 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. I am the appellant throughout (as I am entitled to be), and 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 do this as there is no evidence that this has happened.

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
!!!8220;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 !!!8216;reasonable presumption!!!8217; 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.'

2) Signage obscured and inappropriate, illegible, confusing and not prominent

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. As you can clearly and unrefuteably see from the attached evidence, signs are obscured by other vehicles and there is no way that Drivers can see said signs once parked. This contravenes multiple regulations that are set out in the field.

Indeed the text is so small as to render the sign unreadable and unremarkable. The sign is impossible to read whilst entering the carpark and is insufficient to give one cause to revisit after parking. I believe this has been done deliberately so as to have the claim afterwards that signage is provided, but in the full knowledge all the while that it is highly unlikely that its message will be recognised or noted by drivers.

It is highly unlikely that a driver even saw a sign. I require Britannia to prove beyond any doubt that there was a suitable sign, meeting the requirements of the law, within the clear line of sight of the driver on the driver!!!8217;s walking route from the exact position of the parked car and the entrance that the driver used to the shop on that day.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver of this vehicle can not have seen any clear, unambiguous sign; there was no consideration/acceptance and no contract agreed between the parties. In their rejection of my appeal, Britannia assert that I was the driver (when no such information has been passed to them, and in doing so would be a breach of Data Protection law) that by merely entering the carpark !!!8220;I !!!8220; agreed to the terms and conditions. This is absolutely untrue and cannot be possible, as there is no admission nor proof as to whom the driver was, and it requires a driver, even one with full faculty and cognition, to have agreed to terms and conditions upon entry and before having become aware of signage or read and understood the terms and conditions. To be able to do this would be breaking a number of UK Driving laws.

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 unproportiante 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. 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. In this case, and with the evidence supplied, this is infact the opposite.

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed. As you can clearly see, these signs are not prominent, as are obscured by foliage, completely obscured by vehicles and cannot be therefore seen. This is a clear contravention of the terms and conditions

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. 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 CM's 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.

So, a letter height of just a few CM's, 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.

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.

4) 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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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.!

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 information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner 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

Britannia have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in 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, merely acting as agents. No evidence has been supplied lawfully showing that they are entitled to pursue these charges in their own right.

The BPA Code of Practice clearly states that:!
18.1 !!!8220;A driver who uses your private car park with your permission does so under a licence or contract with you!!!8230;.In all cases, the driver!!!8217;s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.
Baring this paragraph in mind, there was categorically no contract established between the driver and Britannia Parking. 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. Upon further research it is apparent that the initial entrance signs in the car park are poorly located and the terms and conditions illegible.

Please find attached unrefutable evidence of the poor placement of signage, taken by the keeper on a day unrelated to this matter. You can clearly see that the signage is in an extremely poor position, and all signs are obscured by Vans, cars or foliage. You can also see ambitious wording about who can use the parking spaces and for what reasons, meaning that the signs and terms are unambigious and confusing. Also please find attached concrete evidence that as cars are going into the carpark, the signs are impossible to see and therefore unclear to patrons that they are actually there. The poor placement, small and unreadable lettering and unambiguous wording means that these signs, and therefore the terms, are unenforceable.

https://www.dropbox.com/home?preview=20180114_113228+copy.jpg

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https://www.dropbox.com/home?preview=20180203_103441.jpg

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https://www.dropbox.com/home?preview=Picture+3.jpg

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4) No Contract was entered into between the Britannia Parking and the Driver or Registered keeper

Although I was not the driver of the event, I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Britannia Parking clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract.

It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of Britannia Parking to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require Britannia Parking to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park.!

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them and/or enter the only lift on each floor that had the terms of the parking. None of which ever actually happened.

I request that Britannia Parking provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed !!!8220;unfair!!!8221; under the Unfair Terms in Consumer Contract Regulations 1999.

6) There is no evidence provided by the operator that the contravention occurred at all, and if it did, where it occurred. Two photos of the vehicle with no landmarks to place the vehicle, merely show a car on an unidentified roadway x 2. The location is not able to be identified from those images, and the car is not shown to be near any signage with any terms & conditions, and nor are there any images of the dashboard, showing any failure to pay & display.

The operator is put to strict proof of all aspects mentioned above.

Kind Regards

Registered Keeper