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  • FIRST POST
    • mk1008
    • By mk1008 10th Apr 17, 2:58 PM
    • 10Posts
    • 4Thanks
    mk1008
    POPLA question
    • #1
    • 10th Apr 17, 2:58 PM
    POPLA question 10th Apr 17 at 2:58 PM
    Hi,

    I'm trying to to raise POPLA.
    I have shopped in the retail park at 3 shops, and have a receipts on hand.
    I sent the receipt to parking operator but it was rejected at first appeal.

    I asked one of the retailer to cancel it, they have sent the email to the operator to cancel it but still no answer. This is three hours parking with ANPR, and we exceeding about 2x minutes.

    1.) Should I raise the POPLA while waiting the cancellation reply from the parking operator ?
    2.) If I raised POPLA which option that I have to select, by using NEWBIE guide. Should I select "Other grounds for appeal"?

    Please give me some feed back on this letter, I'm just following NEWBIE guide.

    Thank you very much for your help.


    ===========================
    A notice to keeper was issued on xx xxxx xxxx and received by me, the registered keeper of xxxx xxx for an alleged driver’s liability for a parking charge at the xxxxx Retail Park, xxxx xxxxx. I am writing to you as the registered keeper of the vehicle associated and would be grateful if you would please consider my appeal for the following reasons.

    1.) Genuine Customer
    The occupants of the car shopped and provided their receipt to the parking operator to show they are a genuine customer. The retail park consists of several big shops. We requested the parking operator to provide an unredacted copy of the contract with the landowner. The Pntract 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).


    2.) Cancellation requested by the retailer
    The registered keeper has asked the retailer to cancel this ticket which they are agree to cancel it. The retailer have sent the email parking charge notice cancellation to the parking operator.

    3.) 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. 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 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


    4.) 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:

    ** link removed **

    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:

    ** link removed **

    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.

    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:

    ** link removed **

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

    ** link removed **

    ''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:

    ** link removed **

    ''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:

    ** link removed **

    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.

    5.) 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. 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.

    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
    “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.''

    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.''





    Yours sincerely


    Registered Vehicle Keeper.
Page 1
    • Coupon-mad
    • By Coupon-mad 10th Apr 17, 7:12 PM
    • 48,804 Posts
    • 62,302 Thanks
    Coupon-mad
    • #2
    • 10th Apr 17, 7:12 PM
    • #2
    • 10th Apr 17, 7:12 PM
    Part of #1 is repeated in #3 so remove the repetition.

    1.) Should I raise the POPLA while waiting the cancellation reply from the parking operator ?
    I would wait for cancellation to be confirmed (as long as the rejection letter is dated less than 30 days ago) or email the parking firm now, first, and say you will proceed to POPLA if they don't confirm cancellation by next week.


    2.) If I raised POPLA which option that I have to select, by using NEWBIE guide. Should I select "Other grounds for appeal"?
    Yes, other, but no rush, a POPLA code lasts for some 30 days.

    Which PPC is it? ParkingEye? They will normally cancel when a retailer tells them to.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mk1008
    • By mk1008 11th Apr 17, 9:37 AM
    • 10 Posts
    • 4 Thanks
    mk1008
    • #3
    • 11th Apr 17, 9:37 AM
    • #3
    • 11th Apr 17, 9:37 AM
    Thank you for your reply.

    The PPC is HighView parking.
    • Fruitcake
    • By Fruitcake 11th Apr 17, 9:43 AM
    • 40,150 Posts
    • 80,236 Thanks
    Fruitcake
    • #4
    • 11th Apr 17, 9:43 AM
    • #4
    • 11th Apr 17, 9:43 AM
    I don't see grace periods in your appeal. Two minutes is well within the BPA code of practice so you should definitely include that as an appeal point.

    You also need a list of numbered headings at the beginning to match each appeal point.

    There are some typos so you need to proof read and correct them before submitting it.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Coupon-mad
    • By Coupon-mad 11th Apr 17, 1:56 PM
    • 48,804 Posts
    • 62,302 Thanks
    Coupon-mad
    • #5
    • 11th Apr 17, 1:56 PM
    • #5
    • 11th Apr 17, 1:56 PM
    The PPC is HighView parking.
    Originally posted by mk1008
    As it is Highview you also need a point saying that the NTK is not a POFA one, because we know Highview's are not worded that way. You can find that wording by searching this board for 'Highview POPLA no keeper liability' as it's been looked at before.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mk1008
    • By mk1008 11th Apr 17, 5:02 PM
    • 10 Posts
    • 4 Thanks
    mk1008
    • #6
    • 11th Apr 17, 5:02 PM
    • #6
    • 11th Apr 17, 5:02 PM
    Thank you once again, I have found that threat "POPLA Highview Parking Appeal", I will follow that appeal if the PPC still not cancelling the PCN. That one well written. Actually I managed to contact the landlord for that retail park, they referred me to the management that managing that retail park on behalf of the landlord. One of thread in this forum inspired me to search who is the landlord. So not only the retailer asking for the cancellation. The retail park management had also asking for the cancellation to the PCN. Let's see, and I will update this thread again.
    • mk1008
    • By mk1008 20th Apr 17, 12:07 PM
    • 10 Posts
    • 4 Thanks
    mk1008
    • #7
    • 20th Apr 17, 12:07 PM
    • #7
    • 20th Apr 17, 12:07 PM
    I would like to share what is happening with this PCN.

    This PCN is for Beacon Retail Park, Blethcley. Milton Keynes. I was overstayed for 25 minutes instead 3 hours free parking. It was on the day of clock change (26 March).

    First, I sent three receipts (TK Maxx, Brantano and HomeBargain) to Highview at first stage appeal. It was rejected. I didn't read the Newbies thread at this forum first when I did the first stage appeal. I thought if I was a genuine shopper the PCN could be cancelled. But Highview still rejected it.

    Second, I have requested the retailer of the retail park to cancel this PCN.
    I asked Home Bargain, but they are useless. The store manager does not want to help.
    I asked Brantano, they are also useless (they were closing down).
    I asked TK Maxx , it was the biggest store in the site to cancel this PCN to Highview. TK Maxx was very helpful. TK Maxx requested the cancellation to Highview, but after one week communication with Highview, it was rejected. Strange, but it is happening. We should now asking what is the power of the retailer in the retail park to cancel the PCN if they are just a tenant.

    Finally, I managed to contact the landlord, I sent the receipts to them as well. The landlord requested the cancellation of this PCN, and finally this PCN has been cancelled.

    I didn't appealed to the POPLA.

    Moral of the story:
    - Keep your receipts
    - If you got PCN, it is better to read Newbies thread first before you appeal rather than sending the receipts to appeal. Except Parking Eye ?
    - If you can contact the landlord it will be better, I believe they have power to cancel the PCN.
    - If you can't contact the landlord. If you wish to appeal please read the Newbies thread first.
    - I advise to install a Parking Timer application at your phone to avoid this kind of PCN. We could easily forget the time especially shopping in a big retail park with limited parking time.

    I would like to thank to @Coupon-Mad who have been helping people with his thread, and I would like to thank to Money Saving Expert who provided us this forum. I googled the landlord of the retail park after I read the forum. Thank you all.
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