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  • FIRST POST
    • e231
    • By e231 30th Aug 17, 7:39 PM
    • 18Posts
    • 6Thanks
    e231
    ParkingEye LBCCC - sent to my old address
    • #1
    • 30th Aug 17, 7:39 PM
    ParkingEye LBCCC - sent to my old address 30th Aug 17 at 7:39 PM
    Firstly I am so sorry to be adding to the huge amount of threads, but I would be massively appreciative of input of all you wise people!

    I'll try to be concise: My cat was taken to the vets and the driver parked up as normal in the car park as they has always have done. When they were in there and sat down, a sign was noticed saying that the car park next to the vets is now a pay and display. When asked at the reception if this applied to where the car was parked and the receptionist said yes, and that the car should be moved into the tiny car park that was theirs (the vets). It was full when arriving but thankfully there was space out again, so the car was moved. The driver thought that was the end of that - but had no idea that it was ANPR.

    When thinking back, the driver wished that the lady on the reception had told them this, and not ill-advised them to just move the car. It is the drivers fault too, but they really didn't expect this as it has always been free!

    They have changed all their post to come to their new address, and so nothing should be going to their old address. They had no idea that they'd breached the car parking until their old landlord got in touch with them to tell them that there were a few letters to them that he has - lo and behold, the original letter, the reminder letter for £100, and then the Letter Before County Court Claim letter.

    As the registered keeper of the vehicle, I have kept the address of the vehicle up to date with the DVLA, and Parking Eye have unfortunately requested the address details of the registered keeper prior to the DVLA records being updated.

    This was a massive shock for them and had no idea up until now. As the registered keeper of the car and helping out, I've read up on here and know about it, and so followed the advice to post a thread.

    As the registered keeper, I begrudge paying this, and the chance to either pay the "cheaper" amount or appeal it has now been missed.

    Could I get back to them as the registered keeper, explain the old address situation and perhaps get it "reset"?

    When going back to have a look, yes there are signs on the car park, but they did not notice them as they wasn't looking for them - its always been free for all! Annoyingly, there is a sign for the vets predating the intro of PE behind the ticket payment machine!!

    When they spoke to the vets they apologised for the bad advise to just move the car. They said that the land owners wanted them to pay an extortionate amount for their customers to use it, and when they said no, up came the PE ANPR.

    Sorry for the long post, they are just a bit worried and not sure what to do and would be grateful of advice before I do anything!!

    Thanks so much!
    Last edited by e231; Today at 9:53 AM.
Page 1
    • Coupon-mad
    • By Coupon-mad 31st Aug 17, 1:54 AM
    • 51,730 Posts
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    Coupon-mad
    • #2
    • 31st Aug 17, 1:54 AM
    • #2
    • 31st Aug 17, 1:54 AM
    Could I get back to them, explain the old address situation and perhaps get it "reset"?
    Yes. But not by emailing as you, yet...

    The way to get it 'reset' is to email ParkingEye in the name of the old landlord at your old address (basically using his name, or asking him to do this for you), saying that xxxxx Fred Bloggs xxxxx no longer lives here but can be reached at (new address).

    The landlord should add that:

    ParkingEye need to stop writing to his address, as it is harassment and the data is out of date, and to tell them to serve a PCN to xxxxx Fred Bloggs xxxxx at the new address, who is UNAWARE of the matter, as he doesn't live here.

    A new PCN will arrive, either that or a 'we've traced you' letter.

    Both allow an appeal window, the situation is then reset, and you can appeal and should win at POPLA, because there is no keeper liability.

    This only works with PE. Put the PCN number in the email heading.

    info@parkingeye.co.uk

    I suggest you edit your first post so it doesn't say who parked the car!
    Last edited by Coupon-mad; 15-11-2017 at 10:15 PM.
    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.

    • e231
    • By e231 31st Aug 17, 9:08 AM
    • 18 Posts
    • 6 Thanks
    e231
    • #3
    • 31st Aug 17, 9:08 AM
    • #3
    • 31st Aug 17, 9:08 AM
    Thank you so much for the advice! Will follow it exactly!
    • e231
    • By e231 3rd Sep 17, 10:23 PM
    • 18 Posts
    • 6 Thanks
    e231
    • #4
    • 3rd Sep 17, 10:23 PM
    • #4
    • 3rd Sep 17, 10:23 PM
    Sorry to bother you again, but would you be able to remove my name from your post?
    Thanks!
    e231

    • Coupon-mad
    • By Coupon-mad 3rd Sep 17, 11:28 PM
    • 51,730 Posts
    • 65,376 Thanks
    Coupon-mad
    • #5
    • 3rd Sep 17, 11:28 PM
    • #5
    • 3rd Sep 17, 11:28 PM
    Done!

    Let us know if you do then get a PCN, or a 'we've traced you' letter, which resets the clock.
    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.

    • e231
    • By e231 4th Sep 17, 6:55 PM
    • 18 Posts
    • 6 Thanks
    e231
    • #6
    • 4th Sep 17, 6:55 PM
    • #6
    • 4th Sep 17, 6:55 PM
    Wonderful! Though you have missed one...

    I will do! Thank you so much again.
    • e231
    • By e231 22nd Sep 17, 4:16 PM
    • 18 Posts
    • 6 Thanks
    e231
    • #7
    • 22nd Sep 17, 4:16 PM
    • #7
    • 22nd Sep 17, 4:16 PM
    Hello again!

    Certainly took its time, but a letter has arrived to the new address.
    It isn't a "we've traced you" its just a normal PCN as it would arrive the first time.

    Should I proceed as outlined in the big sticky, or is there anything different that I should do?

    Massively appreciative of the help, thanks!
    • Coupon-mad
    • By Coupon-mad 23rd Sep 17, 12:59 AM
    • 51,730 Posts
    • 65,376 Thanks
    Coupon-mad
    • #8
    • 23rd Sep 17, 12:59 AM
    • #8
    • 23rd Sep 17, 12:59 AM
    Works like a dream, that tactic! *Someone* at old address writes and says ''keeper Fred Bloggs lives at new address'' and lo and behold, the case goes back to appeal stage. Nice (only happens this smoothly with ParkingEye, their one redeeming feature).

    Proceed as per the NEWBIES sticky thread.

    Now, does that PCN have the paragraph about the POFA schedule 4/29 days to keeper liability on the back? It shouldn't do, after this delay! As such, you have a ''Golden Ticket'', I expect, and can appeal as keeper and win.

    You can see one as an example, in post #3 of the sticky where it talks about POPLA, there's a link to a winning ''Golden Ticket'' (our phrase) back page. Just like your one, I hope!
    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.

    • e231
    • By e231 23rd Sep 17, 1:08 PM
    • 18 Posts
    • 6 Thanks
    e231
    • #9
    • 23rd Sep 17, 1:08 PM
    • #9
    • 23rd Sep 17, 1:08 PM
    Yes it is a 'Golden Ticket' type!

    So just to check, I send PE an online appeal using the template from post #1 of the newbies thread ("I challenge this 'PCN' as keeper of the car. I believe that your signs fail the test of 'large lettering' and ..."). And then, after hopefully getting a POPLA code, proceed using post #3?

    Thanks!
    • Coupon-mad
    • By Coupon-mad 23rd Sep 17, 1:14 PM
    • 51,730 Posts
    • 65,376 Thanks
    Coupon-mad
    Yes, and if you don't win at POPLA as keeper (no saying who was driving) we'll eat our hats!
    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.

    • e231
    • By e231 10th Oct 17, 12:21 AM
    • 18 Posts
    • 6 Thanks
    e231
    Hooray, POPLA code!
    Which is the template for when the PE letter is a 'Golden Ticket' type?

    I see that the sticky thread says to use the "template POPLA point about 'no keeper liability' from a PE non-POFA type PCN, followed by the template point about the appellant not being shown to be the individual liable (then unclear signs, landowner authority, and if applicable, no grace periods allowed, etc.,)" however I cant see a template for no keeper liability for non windscreen ticket.

    Should this be used?: http:// forums . moneysavingexpert.com / showthread.php?p=71563041#post71563041

    Sorry for questioning, just don't want to mess it up!

    Many many many thanks!
    • e231
    • By e231 25th Oct 17, 11:00 PM
    • 18 Posts
    • 6 Thanks
    e231
    How is this response?
    Hello again,

    I have tried to use everything available from these forums, and have put together a letter for my POPLA. Are all 4 points okay? 3 and 4 were in examples of similar type, but I am not so sure on. Also, does the "In summary" paragraph at the end conclude okay?

    I would be MASSIVELY grateful of any input on this, thank you so much!

    25th October 2017

    POPLA Ref: xxx
    ParkingEye PCN Number: xxx
    Vehicle Reg: xxx


    Dear POPLA,

    On the 13/09/2017, ParkingEye Ltd. issued a parking charge notice highlighting that the above-mentioned vehicle had been recorded via their automatic number plate recognition system on the 28/06/2017 for “…either not purchasing a valid pay and display ticket, by remaining at the car park for longer than permitted, or by not entering your registration details via the terminal”

    As the registered keeper, I wish to refute these charges on the following grounds:
    1) ParkingEye Ltd. used a non- Protection of Freedoms Act (POFA) Parking Charge Notice (PCN)
    2) The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5)
    3) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
    4) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver

    1) ParkingEye Ltd. didn’t use a Protection of Freedoms Act (POFA) Parking Charge Notice (PCN)

    Two PCN’s have been received; a PCN and PCN reminder. Parking Eye Ltd have used a non-POFA on both of these PCNs, and neither says anything about POFA or the “keeper liability after 29 days” that could meet the mandatory requirements of 9(2)b of Schedule 4.

    Please see attached copy of the PCNs received.


    2) The Notice to Keeper does not comply with sub-paragraph 9 (2 & 5)

    To further support this claim, the following areas of dispute are raised:
    • The Notice to Keeper (NTK) was delivered a substantial time outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)
    • The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012

    The Notice to Keeper (NTK) was delivered outside of the relevant period specified under sub-paragraph 9 (5) of the Protection of Freedoms Act 2012 (POFA)

    Sub-paragraph 9 (5) specifies that the relevant period for delivery of the Parking Charge Notice (PCN) for the purposes of sub-paragraph 9 (4) is a period of 14 days beginning with the day after that on which the specified period of parking ended. According to the PCN, the specified period of parking ended on Wednesday 28th June 2017. The relevant period is therefore the 14 day period from Thursday 29th June 2017 to Wednesday 12th July 2017 inclusive. Sub-paragraph 9 (6) states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales. The “Letter Date” stated on the PCN is Wednesday 13th September 2017, which is 2 Months and 16 Days from the parking event and is therefore outside of the relevant period.

    The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA)
    POFA 2012 requires that an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. As sub-paragraph 9 (2) (f) highlights a NTK much adhere to the following points:

    The notice must be given by—
    warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
    i. the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
    ii. the creditor does not know both the name of the driver and a current address for service for the driver,
    the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

    Upon reviewing the NTK, ParkingEye Ltd. have omitted any mention of the conditions as outlined in sub-paragraph 9 (2) (f). The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation.

    3) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

    It is suggested that ParkingEye Ltd. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that ParkingEye Ltd. be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

    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) Signage does not comply with the BPA Code of Practice and were not prominent, clear or legible from all parking spaces to form any contract with a driver

    The BPA Code of Practice clearly states that:

    18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….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.

    Baring this paragraph in mind, there was categorically no contract established between the driver and ParkingEye Ltd. 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. When the driver arrived at the car it was impossible to a read, let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs in the car park are poorly located and the terms and conditions illegible.

    As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this 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:

    [cant post links as new user]

    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 and poorly placed – particularly to a driver entering the site. In fact, some signs are obscured and hidden in some areas with large areas of the car park without visible signs. The signs are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car. In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

    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 the majority 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 operator’s 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:

    [cant post links as new user]

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

    [cant post links as new user]

    ''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.”

    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 an example of a binding case law from the Court of Appeal offers further supports my argument:

    [cant post links as new user]

    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.

    Based on these points, it is believed that ParkingEye Ltd. are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions and driver safety. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, request that ParkingEye Ltd. be required to provide strict proof of exactly where the car was parked (from photos taken in the same lighting conditions) and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date, time and lighting condition of the alleged event. I submit that full terms simply cannot be read safely from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. In addition to this, it is requested that any neighbouring signs to the entrance and vehicle parking location to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted or the driver misinformed.

    In summary:

    As a keeper, why are ParkingEye Ltd issuing me with a ticket and a POPLA code, when they have failed POFA 2012, and so cannot hold a keeper liable for the parking charge notice?

    As a keeper, I can simply say FRO and chase the driver, who shall not be named.

    These points demonstrate the claim by ParkingEye Ltd is invalid and should the claim continue, further action and evidence requested in this appeal is required from ParkingEye Ltd.

    I therefore politely request that POPLA uphold my appeal and cancel this PCN.

    Regards,

    e231
    Last edited by e231; 26-10-2017 at 10:56 AM.
    • Coupon-mad
    • By Coupon-mad 25th Oct 17, 11:09 PM
    • 51,730 Posts
    • 65,376 Thanks
    Coupon-mad
    On the 06/07/2017, ParkingEye Ltd. issued a parking charge notice highlighting that the above-mentioned vehicle had been recorded via their automatic number plate recognition system on the 28/06/2017 for “…either not purchasing a valid pay and display ticket, by remaining at the car park for longer than permitted, or by not entering your registration details via the terminal”
    Eeeek, wrong date at the very start! Now, you are the rk and you only had your PCN recently - remember?!

    Also, do not mention the 'reminder'; that is NOT ''two PCNs'' and it might confuse POPLA:

    1) ParkingEye Ltd. didn’t use a served a non-Protection of Freedoms Act (POFA) Parking Charge Notice (PCN)

    Two PCN’s have been received; a PCN and PCN reminder. Parking Eye Ltd have used a non-POFA on both of these PCNs, and neither says anything PCN with nothing about POFA or the “keeper liability after 29 days” that could meet the mandatory requirements of 9(2)b of Schedule 4. Normally it is on the back, I understand, but this one has no such wording and can only be directed at the driver.

    Please see attached copy of the PCNs received.
    No need to show a pic of the PCN.

    And add the template (after the points about the NTK) that says the operator has not shown the appellant to be the individual liable. It's in the NEWBIES thread post #3.

    I wouldn't include this line, tempting though it is!
    As a keeper, I can simply say FRO and chase the driver, who shall not be named.
    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.

    • e231
    • By e231 26th Oct 17, 10:55 AM
    • 18 Posts
    • 6 Thanks
    e231
    Oh my, I can't beleive I made that mistake, well spotted. The other dates mentioned are correct. Any chance you could edit your post so it is not in there, just in case?

    Thank you so much for the input! I will amend tonight when I get home.
    • e231
    • By e231 29th Oct 17, 4:31 PM
    • 18 Posts
    • 6 Thanks
    e231
    After reading a lot more examples, and using Coupon-Mad's excellent templates, I think I have got this nailed. I have made amendments, such that the 4 points being made are:

    1) ParkingEye Ltd. served a non- Protection of Freedoms Act (POFA) Parking Charge Notice (PCN)
    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
    3) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver
    4) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass

    I hope this looks good enough to send.

    Coupon-Mad - I am so extremely grateful of the advice and resources on this forum you have contributed - you are an absolute saint and I wish I could show just how grateful I am!

    29th October 2017

    POPLA Ref: xxx
    ParkingEye PCN Number: xxx
    Vehicle Reg: xxx


    Dear POPLA,

    On the 13/09/2017, ParkingEye Ltd. issued a Parking Charge Notice (PCN) highlighting that the above-mentioned vehicle had been recorded via their Automatic Number Plate Recognition (ANPR) system on the 28/06/2017 for “…either not purchasing a valid pay and display ticket, by remaining at the car park for longer than permitted, or by not entering your registration details via the terminal”

    As the registered keeper, I wish to refute these charges on the following grounds:
    1) ParkingEye Ltd. served a non- Protection of Freedoms Act (POFA) Parking Charge Notice (PCN)
    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
    3) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver
    4) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass

    1) ParkingEye Ltd. served a non - Protection of Freedoms Act (POFA) Parking Charge Notice (PCN)

    ParkingEye Ltd have used a non-POFA PCN, with nothing about POFA or the “keeper liability after 29 days” that could meet the mandatory requirements of 9(2)b of Schedule 4. Normally is on the back, I understand, but this one had no such wording and can only be directed at the driver.

    Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11, and 12. ParkingEye have failed to fulfil the conditions which state that an operator must have provided the keeper with a Notice to Keeper (NTK) in accordance with paragraph 9, which stipulates as mandatory, a set timeline and wording: -

    The notice must be given by:
    (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
    (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

    The applicable section here is (b) because the Parking Charge Notice/NTK that I have received was delivered by post. Furthermore, paragraph 9(5) states:

    “The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended’’


    The Parking Charge Notice sent to myself as Registered Keeper was produced in their offices showing a purported ‘date issued’ which was already past the 14 days by which, under statute, it had to be in my hands/served. Even if they had posted it that day (which ParkingEye never do in any case at all because they do not put letters in the postal system for several days, due to their batching of mail using a third party before it reaches the Royal Mail system) it would be impossible for the notice to have been delivered within the 'relevant period' as required under paragraph 9(4)(b).

    In fact, this NTK arrived 2 Months and 16 Days from the alleged parking even. This means that ParkingEye have failed to act within the 14-day relevant period.

    Furthermore, it is clear that ParkingEye know this because they have used the alternative version of their template ‘Parking Charge Notice’ – the one with a blank space near the bottom of page one and no reference to ‘keeper liability’ or the POFA.

    So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was, which brings me to point #2:


    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) Signage does not comply with the BPA Code of Practice and were not prominent, clear or legible from all parking spaces to form any contract with a driver

    The BPA Code of Practice clearly states that:

    18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….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.

    Baring this paragraph in mind, there was categorically no contract established between the driver and ParkingEye Ltd. 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. When the driver arrived at the car it was impossible to a read, let alone understand the terms and conditions being imposed. Upon further research, it is apparent that the initial entrance signs in the car park are poorly located and the terms and conditions illegible.

    As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this 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:

    <can't post link as new user>

    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 and poorly placed – particularly to a driver entering the site. In fact, some signs are obscured and hidden in some areas with large areas of the car park without visible signs. The signs are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car. In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

    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 the majority 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 operator’s 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:

    <can't post link as new user>

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

    <can't post link as new user>

    "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.

    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 an example of a binding case law from the Court of Appeal offers further supports my argument:

    <can't post link as new user>

    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.

    Based on these points, it is believed that ParkingEye Ltd. are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions and driver safety. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. Therefore, request that ParkingEye Ltd. be required to provide strict proof of exactly where the car was parked (from photos taken in the same lighting conditions) and how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I request that they show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up, also on the date, time and lighting condition of the alleged event. I submit that full terms simply cannot be read safely from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. In addition to this, it is requested that any neighbouring signs to the entrance and vehicle parking location to demonstrate the consistency of signage and how terms and conditions could not be misinterpreted or the driver misinformed.


    4) ParkingEye Ltd. lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

    It is suggested that ParkingEye Ltd. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that ParkingEye Ltd. be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

    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



    In summary:


    As the keeper of this vehicle, why are ParkingEye Ltd issuing me with a ticket and a POPLA code, when they have failed POFA 2012, and so cannot hold a keeper liable for the parking charge notice?

    These points demonstrate the claim by ParkingEye Ltd is invalid and should the claim continue, further action and evidence requested in this appeal is required from ParkingEye Ltd.

    I therefore politely request that POPLA uphold my appeal and cancel this PCN.

    Regards,

    e231
    Thanks,
    • Umkomaas
    • By Umkomaas 29th Oct 17, 5:16 PM
    • 15,905 Posts
    • 24,659 Thanks
    Umkomaas
    1) ParkingEye Ltd. served a non - Protection of Freedoms Act (POFA) Parking Charge Notice (PCN)
    I would rephrase - ‘ParkingEye Ltd have served a Notice to Keeper (NtK) that is not compliant with the requirements of the Protection of Freedoms Act 2012; they are therefore unable to transfer liability for this alleged parking charge to the keeper’.
    Last edited by Umkomaas; 29-10-2017 at 5:26 PM.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • KeithP
    • By KeithP 29th Oct 17, 5:24 PM
    • 4,747 Posts
    • 3,086 Thanks
    KeithP
    I think I would reduce this:
    The Parking Charge Notice sent to myself as Registered Keeper was produced in their offices showing a purported ‘date issued’ which was already past the 14 days by which, under statute, it had to be in my hands/served. Even if they had posted it that day (which ParkingEye never do in any case at all because they do not put letters in the postal system for several days, due to their batching of mail using a third party before it reaches the Royal Mail system) it would be impossible for the notice to have been delivered within the 'relevant period' as required under paragraph 9(4)(b).
    Also...
    "...from the alleged parking even."
    ??
    Last edited by KeithP; 29-10-2017 at 5:29 PM.
    .
    • Umkomaas
    • By Umkomaas 29th Oct 17, 5:27 PM
    • 15,905 Posts
    • 24,659 Thanks
    Umkomaas
    I think I would reduce this:



    "...from the alleged parking even."

    ??
    Originally posted by KeithP
    Edited to add .....
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • e231
    • By e231 29th Oct 17, 6:01 PM
    • 18 Posts
    • 6 Thanks
    e231
    Thanks for the pointers, I'll change that heading. And I did wonder about the text in brackets, as to if it should be included or was just a side note. Thanks!

    I am not too sure what you mean about the "...from the alleged parking even." though - should this be rephrased? Sorry if it is something obvious that I am not seeing! Ahh typo! Should be event. Knew it'd be something obvious!!

    Many Thanks!
    Last edited by e231; 29-10-2017 at 6:03 PM.
    • e231
    • By e231 30th Oct 17, 10:19 PM
    • 18 Posts
    • 6 Thanks
    e231
    So other than the change of title, the removal of the text in brackets about the post, and the typo, is it good to send?

    I will post the final thing that I send, so that it can add to the many examples!

    Thanks CM, KeithP and Umkomaas!
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