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  • FIRST POST
    • Mrsead
    • By Mrsead 25th Apr 17, 10:49 PM
    • 8Posts
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    Mrsead
    POPLA appeal letter - does it look ok?
    • #1
    • 25th Apr 17, 10:49 PM
    POPLA appeal letter - does it look ok? 25th Apr 17 at 10:49 PM
    Hi all,
    I'm not sure whether I should post this on the end of my original thread from some weeks ago or a new thread so I've gone with a new one? Apologies if that's wrong!

    I had a popla code yesterday in an email from Premier Park with rejection of the first appeal, including a line stating "we are satisfied that on this occasion the charge was issued correctly as the vehicle overstayed the paid parking period by 22 minutes". I had already drafted a popla appeal letter using the template an looking at others to pull out the relevant points but would be really grateful for some expert advice as to whether it reads as it should, particularly the final point about a grace period.

    It was suggested before that there may be a point to be made of land ownership as the car park is owned by council by leased to coast and countryside trust. I looked into this as it looked like th eoff street parking places order made by council in 2013 was still applicable but it now seems like that order was revoked in August 2016 so I'm guessing that point is not oging to be valid now?

    If anyone can look this over for me and let me know if it's ok I'd really appreciate it! Thanks!
    [/COLOR]
    POPLA CODE
    I am the registered keeper and I am appealing this parking charge from Premier Park Ltd at .... Car Park.

    To protect the driver, they have not been named.

    My appeal as the registered keeper is as follows:
    1. No evidence of Landowner Authority
    2. No keeper liability
    3. Inadequate signage
    4. Insufficient grace period


    1. 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


    2. 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.''

    3. 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

    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

    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

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

    LINK

    ''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

    ''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

    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.

    4. No period of grace given for the driver to read the additional signs within the car park.

    The paid for parking session on the PCN is not established by the photographs provided. Photographs taken show merely the time of entry into and exit from the car park but do not establish the time at which the parking ticket was purchased or at which it expired.

    The BPA Code of Practice (13.1) states that parking operators "should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action." As stated previously, the entrance signs to this car park are insufficient to allow the driver to decide whether parking in the car park would breach any contract. The entrance sign states that the driver should "see additional signs for full details". The additional sign is within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional sign and decide whether to adhere to the terms of the contract or leave the car park.

    The driver of the car at the time was unable to park immediately upon entering the car park due to congestion within the car park from other vehicles. This would therefore account for any delay between the entry time shown in the photographs and the time of ticket purchase, which is unestablished by the operator. Upon returning to the car the driver discovered they were blocked by another car in a manner that would not allow them to exit the car park without causing damage to either vehicle. The driver was therefore forced to wait in the vehicle for the other driver to move their vehicle to allow them to exit the car park. This would therefore account for any discrepancy between the time of expiry on the ticket, which is unestablished by the operator, and the time of exit shown in the photographic evidence provided.

    Therefore it is respectfully requested that this parking charge request appeal be upheld on every point.

    Yours faithfully
Page 1
    • Coupon-mad
    • By Coupon-mad 26th Apr 17, 12:59 AM
    • 50,726 Posts
    • 64,127 Thanks
    Coupon-mad
    • #2
    • 26th Apr 17, 12:59 AM
    • #2
    • 26th Apr 17, 12:59 AM
    I'm not sure whether I should post this on the end of my original thread from some weeks ago or a new thread so I've gone with a new one? Apologies if that's wrong!
    It is wrong but no worries, you are not the first. Please copy your POPLA draft into a reply on your main thread so we can see the background too.

    Re Premier Park, expect to lose at POPLA because POPLA have got it wrong recently in lots of their cases. But don't pay them, ex-clampers are not worthy of your money.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • mucker2308
    • By mucker2308 6th Oct 17, 11:17 PM
    • 20 Posts
    • 9 Thanks
    mucker2308
    • #3
    • 6th Oct 17, 11:17 PM
    • #3
    • 6th Oct 17, 11:17 PM
    Dear whom it concerns.

    I am writing to you today due to a declined appeal from Premier Park Ltd from a stay in the Tenby car park.

    NO LANDOWNER CONTRACT

    7 Written authorisation of the landowner
    7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.
    7.2. 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 f whether or not the landowner authorises you to take legal action to recover charges due from drivers charged for unauthorised parking.
    7.3 Our compliance team are responsible for making sure that you follow the Code. If the team give you reasonable notice, you must allow our appointed manager to inspect the landowner’s written authorisation.
    BPA CoP GRACE PERIODS

    13 Grace periods
    13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
    13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
    13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
    13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.

    14 Misrepresentation of authority

    14.1 You must give clear information to the public about what parking activities are allowed and what is unauthorised. You must not misrepresent to the public that your parking control and enforcement work is carried out under the statutory powers of the police or any other public authority. You will be breaching the Code if you suggest to the public that you are providing parking enforcement under statutory authority.
    14.2 You must not use terms which imply that parking is being managed, controlled and enforced under statutory authority. This includes using terms such as ‘fine’, ‘penalty’ or ‘penalty charge notice’. 14.3 The abbreviation ‘PCN’ is also used to mean a ‘penalty charge notice’ in the regulated environment. Unless you have previously defined a PCN as a ‘parking charge notice’ on your signs and notices, you must avoid using the term ‘PCN’ to avoid confusing drivers about the nature of your parking enforcement.

    18 Signs

    18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.
    18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.
    18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.
    following any applicable government signage regulations. See paragraphs 2(2), 2(3) and 12 of the Schedule.
    18.5 If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.
    18.6 The wording you include on your specific parking terms signage is your decision. However, you should try to use plain and intelligible language in all your signs and information.
    18.7 You must not offer just a premium-rate number. If you do have a premium-rate number, you must also offer a standard-rate number you can be contacted on.
    18.8 You should display the BPA and AOS logos on all sites. This will help the public to see that you are a legitimate operator, and show that the site is run properly.
    18.9 Important: you may have to give other information on signs and notices under companies and consumer protection law and other legislation.
    18.10 So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists.

    16 Disabled motorists
    16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.
    16.2 ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine.
    16.3 Operators of off-street car parks do not have to recognise the Blue Badge scheme. But many choose to do so to meet their obligations under the Equality Act. Although a Blue Badge is not issued to all disabled people it is issued to those with mobility problems. So it is a good way for parking operators to identify people who need special parking provision.
    16.4 You are at risk of a claim under the Equality Act if you do not discourage abuse of the ‘disabled’ spaces. This means that you need to make sure the spaces are regularly checked to be sure they are not being used by people who do not have a disability.
    16.5 If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices

    19 Charges, and terms and conditions
    19.1 When you issue a parking charge notice the charges you make have to be reasonable. This section explains what reasonable charges are.
    19.2 In the Code ‘parking charges’ means charges arising from enforcement under three different circumstances:
    • when a motorist breaks the terms and conditions of a parking contract
    • when a motorist trespasses by parking without permission
    • agreed charges that are advertised in the contract; for example, for an overstay. It does not mean the normal tariff fees for parking.
    These are a matter for the landowner and operator and are outside the scope of the Code. Your terms and conditions will include your normal tariffs for parking, plus any parking charges if the driver breaks the contract or commits a trespass.
    19.3 If the driver breaks the contract, for example by not paying the tariff fee or by staying longer than the time paid for, or if they trespass on your land, they may be liable for parking charges. These charges must be shown clearly and fully to the driver on the signs which contain your terms and conditions.
    19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.
    19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in
    19.5 and is not justified in advance, it could lead to an investigation by The Office of Fair Trading.
    19.7 If prompt payment is made (defined as 14 days from the issue of the parking charge notice) you must offer a reduced payment to reflect your reduced costs in collecting the charge. This reduction in cost should be by at least 40% of the full charge.
    19.8 If you are asked, you must be able to justify the level of parking charges to the AOS Board, a member of our compliance team or to their specified agent.
    19.9 You should warn drivers that if they delay payment beyond a payment period of 28 days, and you need to take court action or use debt-recovery methods to recover a debt, there may be extra ‘recovery’ charges for debt-recovery action. However, you do not need to say how much these recovery charges are in advance, on your signs or notices

    When we arrived at our holiday let in Tenby, we then seen the property was on the front of a narrow pavement onto double yellow lines in a busy town centre. We then proceeded on to the car park.

    We were also we were told by owner of the property we could get to the house to drop things off and we entered the car park to weigh things up after a 4 and a half hours journey. There were no spaces avialable for both my car and my parent in laws but we seen there was an opening to the back of the house in the corner or the car park.

    Due to my mother in law being disabled we wanted to find a safe place for her to get out of the car, also we unloaded our luggage and then left to stay in another car park.

    We checked on arrival and I do not recall the signs stating any grace periods on there so we thought a ticket purchase was not required.

    Therefore it is respectfully requested that this parking charge request appeal be upheld on every point.

    Regards,
    • KeithP
    • By KeithP 6th Oct 17, 11:23 PM
    • 3,961 Posts
    • 2,214 Thanks
    KeithP
    • #4
    • 6th Oct 17, 11:23 PM
    • #4
    • 6th Oct 17, 11:23 PM
    Dear whom it concerns....
    Originally posted by mucker2308
    Mucker, why have you posted this here?
    .
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