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  • FIRST POST
    • daveruk
    • By daveruk 18th Jan 18, 9:17 AM
    • 5Posts
    • 1Thanks
    daveruk
    Britannia Parking PCN Cinema Visit
    • #1
    • 18th Jan 18, 9:17 AM
    Britannia Parking PCN Cinema Visit 18th Jan 18 at 9:17 AM
    Hi

    New to this forum, but have read many posts and thought I may post mine here. Not sure if it is a winnable PCN, however (as I am sure many do) I detest these companies who try to catch motorists out with these unfair charges. In this case whilst at the cinema...

    Factual events:

    A PCN - Notice to Keeper has been issued by Britannia to the registered keeper. I do have one question which was not clear to me in the newbies section. The contravention date is 04 Dec. Yet entry was on 03 Dec (around 23:00) (exit was 04 Dec around 03:00am). The driver was unaware of any restrictions as it was late, and there was insufficient lighting to see the signage. The date of Notice was 18 Dec, yet was not received until 21 Dec. I doubt it, but wanted to check if this slow issuing of the PCN was of any help to the keeper?

    In anycase I intend to send the blue worded template just prior to the 28 days from the "date of correspondance". I hope my sums on dates are correct, but any advice/help would be greatly appreciated.

    Thanks and I will update progress here.
    Last edited by daveruk; 08-02-2018 at 8:05 AM. Reason: removing identifiable elements of post and altering dates so that this cannot be identified as a PCN relating to me.
Page 1
    • Quentin
    • By Quentin 18th Jan 18, 9:21 AM
    • 34,497 Posts
    • 18,464 Thanks
    Quentin
    • #2
    • 18th Jan 18, 9:21 AM
    • #2
    • 18th Jan 18, 9:21 AM
    You have found the advice you need already

    The Newbies faq thread also has further advice if your first appeal fails.

    Come back if you need to move on to a popla appeal
    • Umkomaas
    • By Umkomaas 18th Jan 18, 10:07 AM
    • 16,628 Posts
    • 25,999 Thanks
    Umkomaas
    • #3
    • 18th Jan 18, 10:07 AM
    • #3
    • 18th Jan 18, 10:07 AM
    1. To calculate whether the NtK (postal notification) meets PoFA requirements you count 14 (calendar) days from the day following the parking event, so in your case 15/12 is day #1. Day #14 is the day by which the NtK is received. In your case, the PPC didn!!!8217;t issue your NtK until the 14th day (28/12), therefore they have failed to meet PoFA requirements to hold the keeper liable. Telling the PPC this in your initial appeal is a waste of time - they will ignore it, keep it for POPLA.

    2. Delaying the initial appeal until day 25/26 is a tactic to be used for windscreen tickets, if you!!!8217;ve had a notice through the post, send your initial appeal in as soon as you like (but don!!!8217;t miss the overall deadline of 28 days).

    What was the reason for issue of the parking charge?

    Your case is eminently winnable at POPLA, provided you don!!!8217;t identify the driver, so use that blue text initial appeal, but do not add anything to it.
    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.
    • daveruk
    • By daveruk 18th Jan 18, 11:25 AM
    • 5 Posts
    • 1 Thanks
    daveruk
    • #4
    • 18th Jan 18, 11:25 AM
    • #4
    • 18th Jan 18, 11:25 AM
    What was the reason for issue of the parking charge?
    "Contravention: Failed to make a valid payment" on the NTK

    then the following is on the NTK (first page):

    "The signage displayed at the entrance to and through the car park, states that the car park is private land operated
    by Britannia Parking (the creditor). Parking conditions apply or a Parking Charge will be incurred, along with other
    terms and condibons of the car park by which those who park in the car park agree to be bound.
    By contravening the terms and conditions set out on the signage the Parking Charge is now payable.
    Please be advised that the driver of the motor vehicle is required to pay this parking charge in full. As we do not
    know the drivers name or current address, and if you were not the dnver of the vehicle at the time, you should tell us
    the name and the current postal address of the driver and pass this notice to them for payment.
    If you were the driver at the time of the event you are required to pay or appeal the parking charge.
    Please see over for details of how to pay and what to do if you want to appeal the Parking Charge Notice."
    • Umkomaas
    • By Umkomaas 18th Jan 18, 11:30 AM
    • 16,628 Posts
    • 25,999 Thanks
    Umkomaas
    • #5
    • 18th Jan 18, 11:30 AM
    • #5
    • 18th Jan 18, 11:30 AM
    Get your initial appeal off, obtain your POPLA Code, read the NEWBIES FAQ sticky, post #3 which shows you how to win at POPLA (it includes ready to use written appeal sections for copying and pasting. Your main appeal point will be !!!8216;No Keeper Liability!!!8217;. Do plenty of research, then you!!!8217;ll be ready to get this all killed off at POPLA.
    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.
    • daveruk
    • By daveruk 18th Jan 18, 11:38 AM
    • 5 Posts
    • 1 Thanks
    daveruk
    • #6
    • 18th Jan 18, 11:38 AM
    • #6
    • 18th Jan 18, 11:38 AM
    Fantastic, really appreciate all the good info on here, and look forward to winning!

    May the force be with you all!
    • daveruk
    • By daveruk 7th Feb 18, 8:58 PM
    • 5 Posts
    • 1 Thanks
    daveruk
    • #7
    • 7th Feb 18, 8:58 PM
    • #7
    • 7th Feb 18, 8:58 PM
    Thanks for all help so far. I would appreciate any advice regarding the following which I intend to use as POPLA appeal. I guess it is lengthy, but perhaps that is the point. One note to add is that I have visited the site and there are no visible entry signs at all (one that is there has swivelled to face a wall) and it is all very poorly lit, so I can see how any driver would be uinaware they were entering a privately controlled parking area. I have taken a few pictures which demonstrate all of this, which I will add to my appeal.

    Date of Notice: XXX December 2017
    Date of contravention: XXX December 2017

    Dear POPLA Adjudicator,

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

    PCN: xxxxx
    POPLA verification code: xxxxx

    On the xx/xx/2017, Britannia Parking issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for !!!8216;failing to make a valid payment!!!8217;

    As the registered keeper I wish to refute these charges on the following grounds:
    1) The Notice to Keeper does not comply with sub-paragraph 9 (2)(f) POFA 2012
    2)The operator has not shown that the individual who it is pursuing is in fact liable for the charge
    3) Britannia Parking 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) The Notice to Keeper does not comply with sub-paragraph 9 (2)(f) POFA 2012

    The notice must be given by!!!8212;
    warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given!!!8212;
    (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 present NTK, Britannia Parking 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 and is therefore unable to recover from the keeper.
    LINK
    NTK Failure to comply:
    <Image inserted here >

    2) The operator has not shown that the individual who it is pursuing is in fact 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. Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. 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 charge cannot be enforced against a keeper without a POFA-compliant NTK. The burden of proof rests with the Operator, because they cannot use the POFA in this case, 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 !!!8211;they will fail to show I can be liable because the driver was not me. The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-
    Understanding keeper liability
    !!!8220;There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no reasonable presumption!!!8217; in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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) Britannia Parking 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 Britannia Parking does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that Britannia Parking 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 !!!8216;witness statement!!!8217; 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 signs detailing charges were unilluminated and not clear (as will be shown by pictures taken on revisiting this place) after 23:00 / night-time !!!8211; consequently there was no 'offer' for the driver to accept, and so no contract formed.
    The BPA Code of Practice clearly states that:
    18.1 !!!8220;A driver who uses your private car park with your permission does so under a licence or contract with you!!!8230;.In all cases, the driver!!!8217;s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.
    Bearing this paragraph in mind, there was categorically no contract established between the driver and Britannia Parking. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. Upon further research it is apparent that the initial entrance signs in the car park are not even visible at the night time (see picture 1) poorly located and the terms and conditions illegible at night there is no lighting (see picture 2). Moreover, there is a ticket machine at the entrance to the car park that further confuses, as it is much the same as those in surrounding streets which have all parking restrictions ending at 17:30 !!!8211; all with clear signage I might add. (this alleged contravention was at 23:49).
    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:

    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 !!!8220;agreement on the charge!!!8221; existed. Here, the signs are sporadically and poorly placed and not lit up !!!8211; particularly to a driver entering the site !!!8211; with no lighting. 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.!! In fact you will see by reference to picture 1 that there is no signage at all visible when entering the carpark all the way up to parking spaces where again no visble signs are apparent.
    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!!!8217;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:

    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!!!8221; 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!!!8221; or even larger.!!!8221;
    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 a dark, and poorly lit 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:

    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.


    Based on these points, it is believed that Britannia Parking 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 Britannia Parking 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.

    Finally, I would like to add, there is no evidence provided by the operator that the contravention occurred at all, and if it did, where it occurred. Two photos of the vehicle!!!8217;s lights and Number plate only have been supplied with no landmarks to place the vehicle, merely show this vehicle on an unidentified roadway. The location is not able to be identified from those images, and the car is not shown to be near any signage with any terms & conditions, and nor are there any images of the dashboard, showing any failure to pay & display.
    LINK <Image inserted here>

    The operator is put to strict proof of all aspects mentioned above.
    In summary, these points demonstrate the claim by Britannia Parking is invalid and should the claim continue, further action and evidence requested in this appeal is required from Britannia Parking
    • Fruitcake
    • By Fruitcake 7th Feb 18, 9:30 PM
    • 40,938 Posts
    • 81,719 Thanks
    Fruitcake
    • #8
    • 7th Feb 18, 9:30 PM
    • #8
    • 7th Feb 18, 9:30 PM
    I've only skim read it, but you appear to have the important points covered. You should embed the images in the real thing rather than include links. That way the assessor is forced to actually look at them.

    One point from post 4. Did the PPC really use the words, "if you were not the dnver of the vehicle at the time, you should tell us the name and the current postal address of the driver" when talking about not knowing the identity of the driver?
    If so, you should complain to the BPA as this is a misrepresentation of the very strict wording of the POFA 2012, which says the PPC may invite the keeper to name the driver. (Not the actual words of the POFA, but you get my drift.)

    Remind the BPA that an MP said, the British Parking Association are about as much use as a multi-storey car park in the Gobi desert. You should therefore challenge them to improve their image in the eyes of the UK Government and the motoring public, by sanctioning rogue operators who deliberately mislead motorists, as Britannia have tried to do here.

    In addition, complain to your MP. Here are some of the comments that MPs used in parliament last Friday when discussing the unregulated private parking industry. The NEWBIES also carries this wording, plus some more, if you wish to use that instead.

    Cowboy companies, signage deliberately confusing to ensure a PCN is issued, rogue parking companies, bloodsuckers, absolute disgrace, rogue operators, unfair charges and notices, wilfully misleading, signage is a deliberate act to deceive or mislead, unreasonable, designed to trap innocent drivers, a curse, harassing, operating in a disgusting way, appeals service is no guarantee of a fair hearing, loathed, outrageous scam, dodgy practice, outrageous abuse, unscrupulous practices, the BPA is as much use as a multi-storey car park in the Gobi desert.
    Last edited by Fruitcake; 07-02-2018 at 9:32 PM.
    I married my cousin. I had to...
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    • daveruk
    • By daveruk 7th Feb 18, 10:17 PM
    • 5 Posts
    • 1 Thanks
    daveruk
    • #9
    • 7th Feb 18, 10:17 PM
    • #9
    • 7th Feb 18, 10:17 PM
    One point from post 4. Did the PPC really use the words, "if you were not the dnver of the vehicle at the time, you should tell us the name and the current postal address of the driver" when talking about not knowing the identity of the driver?
    Thanks for reading Fruitcake. Yes my post on section 4 was a cut and paste job so the wording is exactly what was written on the NTK. Total scumbags aren't they!

    I will indeed complain to the BPA as you suggest. However, is it worth mentioning this point in my appeal to POPLA?
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