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  • FIRST POST
    • mo_1
    • By mo_1 7th Nov 17, 6:04 PM
    • 33Posts
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    mo_1
    Park Watch PCN
    • #1
    • 7th Nov 17, 6:04 PM
    Park Watch PCN 7th Nov 17 at 6:04 PM
    Hi All,


    Newbie here so I am hoping I get this right, I have read the sticky.


    I have received a PCN from Park Watch, (no windscreen ticket issued) for 'No Permit' a few questions please.


    1. Do I use the blue text for appeal and just remove the bit about obtaining details from DVLA as they have already done that? When do I send the appeal straight away or wait?


    2.What details must they provide on the PCN? does it have to have the duration?


    Am I ok to upload the PCN on here or is it best to PM it to someone to take a look?
Page 2
    • mo_1
    • By mo_1 27th Nov 17, 10:28 AM
    • 33 Posts
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    mo_1
    When appealing to Popla is it done through a website or is it an email, i am considering drafting the popla appeal as i still have not recived anything from ParkWatch
    • Umkomaas
    • By Umkomaas 27th Nov 17, 10:41 AM
    • 16,631 Posts
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    Umkomaas
    When appealing to Popla is it done through a website or is it an email, i am considering drafting the popla appeal as i still have not recived anything from ParkWatch
    Originally posted by mo_1
    I’m sure the precise instructions are detailed on the POPLA website - always best get it from an official source if one is available.
    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.
    • nosferatu1001
    • By nosferatu1001 27th Nov 17, 12:05 PM
    • 1,681 Posts
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    nosferatu1001
    Website, using the acccess code you have for a BPA member refusing an appeal.
    • mo_1
    • By mo_1 5th Dec 17, 4:34 PM
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    mo_1
    Just as i thought the appeal has been rejected, now for the popla appeal... other than the template for the popla appeal what else should/could i add. Should the 2 points below be added?

    1. There is no length of time on the original NTK, is this a requirement?

    2. One of the photos that ParkWatch have taken is of the driver on a public road appraching the car park.
    • mo_1
    • By mo_1 6th Dec 17, 1:59 PM
    • 33 Posts
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    mo_1
    I could do with some assistance on this please, i am abroad and have very limited internet access.

    Park Watch emailed me on 5th Dec, when is the last date i can submit the appeal to Popla. I am not back in the UK until 31st Dec
    • Quentin
    • By Quentin 6th Dec 17, 2:10 PM
    • 34,497 Posts
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    Quentin
    Do you have a POPLA code?


    If so you have 28 days
    • mo_1
    • By mo_1 6th Dec 17, 3:50 PM
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    mo_1
    I have the code, it was sent on 5th Dec. Is the last day i can reply the 1st or 2nd Jan?
    • Redx
    • By Redx 6th Dec 17, 3:56 PM
    • 17,319 Posts
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    Redx
    they typically last around 30 days but due to the bank holiday I would not be pushing it so 2nd or 3rd jan

    over 3 weeks is plenty of time to construct a popla appeal and submit it online and you can do this from abroad if you like
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • mo_1
    • By mo_1 6th Dec 17, 5:55 PM
    • 33 Posts
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    mo_1
    Thanks for the reply, is it worth adding the two points below to the template?

    1. There is no length of time on the original NTK, is this a requirement?

    2. One of the photos that ParkWatch have taken is of the driver on a public road appraching the car park.
    • Umkomaas
    • By Umkomaas 6th Dec 17, 10:02 PM
    • 16,631 Posts
    • 25,999 Thanks
    Umkomaas
    One of the photos that ParkWatch have taken is of the driver on a public road appraching the car park.
    You need to take every advantage open to you in your POPLA appeal.

    There is no length of time on the original NTK, is this a requirement?
    You need to understand the requirements of PoFA if you are to make key points of attack against the PPC!!!8217;s attempt to invoke Keeper Liability, so do please check that out in Schedule 4 of the Act.
    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.
    • mo_1
    • By mo_1 7th Dec 17, 5:50 PM
    • 33 Posts
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    mo_1
    I am fairly sure that duration is a requirement, i am abroad in a remote village so find it very difficult to get internet connection. I will be very greatful if someone can confirm please?
    • nosferatu1001
    • By nosferatu1001 7th Dec 17, 6:12 PM
    • 1,681 Posts
    • 1,884 Thanks
    nosferatu1001
    Period of Parking must be given
    • mo_1
    • By mo_1 7th Dec 17, 6:28 PM
    • 33 Posts
    • 0 Thanks
    mo_1
    Thankyou, does it still if the reason is !!!8216;No Permit!!!8217;?
    • mo_1
    • By mo_1 8th Dec 17, 11:01 AM
    • 33 Posts
    • 0 Thanks
    mo_1
    Does it still apply if the reason is !!!8216;No Permit!!!8217;?
    • nosferatu1001
    • By nosferatu1001 8th Dec 17, 11:15 AM
    • 1,681 Posts
    • 1,884 Thanks
    nosferatu1001
    Yes, it is a requirement.
    • mo_1
    • By mo_1 1st Jan 18, 11:00 PM
    • 33 Posts
    • 0 Thanks
    mo_1
    Happy New Year,

    tomorrow is my last day to submit the POPLA appeal i think? i received the reply on 5th December?

    anyway here is my first draft.

    Re: Parking Charge reference number: xxxxxx
    Vehicle registration: xxxxxxx
    POPLA reference number xxxxxx

    As the registered keeper of the above vehicle, I wish to appeal the above parking charge from ParkWatch issued at xxxx on xxx, xxxx. I would like the Parking charge notice cancelled on the following grounds.

    1) Non-compliant Notice to Keeper
    2) The operator has not shown that the individual who it is pursuing is in fact the driver
    3) No standing or authority to pursue charges nor form contracts with drivers.
    4) The signage was not adequate so there was no valid contract formed.

    1) Notice to keeper is non-compliant
    Although Schedule 4 of the Protection of Freedoms ACT 2012 (POFA) potentially gives a creditor the right to recover any unpaid paring charges from a vehicles keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to ‘keeper liability’ does not exist.
    The operators Notice to Keeper fails to comply with Schedule 4 as below:
    It fails to comply with paragragh 9(2)(a)
    9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
    (2)The notice must—
    (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
    As no period of parking is mentioned in the Notice to Keeper the Notice to Keeper is non-compliant

    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) 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:

    http://imgur.com/a/AkMCN

    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:

    http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

    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:

    http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

    http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

    ''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:

    http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

    ''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:

    http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    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.

    Another thing that i did want to mention was that the photos that were provided were taken of the car on a public road approaching the car park, the second photo shows the rear of the car in the car park not sure how to word this bit. Also there was no duration on the NTK which i have mentioned above, does the land it was parked on need to mentioned in full? as in full address as the NTK just states "The Square Shopping Centre"
    • mo_1
    • By mo_1 2nd Jan 18, 9:10 AM
    • 33 Posts
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    mo_1
    Anyone free to take a look please?
    • Fruitcake
    • By Fruitcake 2nd Jan 18, 9:17 AM
    • 40,938 Posts
    • 81,719 Thanks
    Fruitcake
    How did you get on with the council? Did they confirm if the road is public or private? If you haven't done that, put something like, I believe the image was taken on a public road. If that is the case then the PPC has breached their Kadoe contract with the DVLA, and have also breached the BPA CoP and the DPA as they have no rights to operate a for profit business on a public road.

    You will need to check which sections against the current CoP etcetera.
    Last edited by Fruitcake; 02-01-2018 at 9:23 AM.
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    • Umkomaas
    • By Umkomaas 2nd Jan 18, 9:21 AM
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    Umkomaas
    Skim read.

    Are there any more PoFA !!!8216;fails!!!8217; on the NtK you can bring in?

    Standard stuff otherwise ok.
    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.
    • Umkomaas
    • By Umkomaas 2nd Jan 18, 9:24 AM
    • 16,631 Posts
    • 25,999 Thanks
    Umkomaas
    Check the formatting and numbering. I can't see a section 4 in your text so don't know where point 3 ends and point 4 begins.
    I thought the same too Fruity and initially wrote a similar comment, but I did a thorough recheck and it is there - just poor formatting. It gets very difficult to read all this ill-formatted copy and dump stuff, thus why I now only skim these appeals.
    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.
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