Help With PCN Please (Unclear Signage)

Coupon-mad

Super signage evidence in your favour! Seize upon that and embed some of those pics within your word document as you write the appeal. That really helps your case as keeper that 'the driver' cannot be considered to have made any promise to pay £100 or comply with unknown 'terms' because the woefully inadequate and sparse signs are under the tree canopy, completely obscured. And even the 'close up' the Wing operative has struggled to take because it's so high and under a tree with no light, shows nothing legible at all that could be construed as an offer and nothing readable about £100.

At the entrance the one of the wall was covered by ivy (since trimmed) and as POPLA will be able to see, there is no light there and Wing have chosen to put it so high on a side wall that a driver has no chance to see or read that on arrival, it simply cannot be seen. Wrong angle and not lit, completely against fair contract law for adequate notification of terms to a consumer and against the BPA CoP on entrance signs (quote it).

Remind POPLA that in the Beavis case the Judges were impressed that (from the evidence they were shown) the signs were large, prominent and with the charge in 'large lettering' throughout the site, which they felt gave the driver every opportunity to discover the terms by which he would later be bound. Not so here! No known offer, no consideration flowed between the parties and no chance of accepting a contract that a consumer cannot read and does not know is there at all, even when looking around the car park the signs are obscured, sparse and illegible which is hardly compliant with Lord Denning's 'red hand rule' for onerous terms like a disproportionate and unknown 'fine'.

Apollo18

Sorry, duplicate post.

Apollo18

Quentin wrote: »

If your car is on those photos, (which in any case can identify you via the timestamp) so you need to take down the link.

PPCs patrol here!

Thanks, I have taken them down. Does it really matter at this stage though if they can identify me or not? I suppose they will see my defence in advance when I post it but is there much they can do about it now anyway? Thanks for the advice.

Coupon-mad

Not a defence, an appeal!

The important thing is just to check all your posts on this thread, to make sure your words until now, do not say who parked the car/got a windscreen PCN. That's the sort of thing nosy PPCs seize on and seeing as your slam-dunk winning point (apart from signs) is 'no keeper liability' you need to be 'the keeper' on this thread, and only the keeper.

Apollo18

I have not finished but I was wondering if somebody could read through what I have written so far to see if there should be any changes?

Re: Wing Parking Ltd PCN {PCN Reference}
POPLA Code: {POPLA Reference}

Dear POPLA adjudicator,

I am the registered keeper of vehicle registration mark ****** and I wish to appeal against the notice on the following grounds.

1. Signage does not comply with BPA Code of Practice (BPA CoP);
2. The Notice To Owner (NTO) does not comply with the Protection of Freedoms Act 2012 (POFA) – no keeper liability;
3. The NTO does not comply with POFA – not relevant land;
4. No standing or authority to pursue charges nor form contracts with drivers;
5. The charge is not a genuine pre-estimate of loss.

1. Signage does not comply with BPA Code of Practice.

(a) The BPA CoP stipulates in paragraph 18.3 that “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”
The signs fail to comply with this requirement since they were hidden from view of the driver behind a canopy of trees and were covered in over-grown ivy (see attached photos). There was no sign showing detailed terms and conditions and no sign was of the required 450mm x 450mm.

(b) 18.7 of the BPA CoP states “You must not offer just a premium-rate number. If you do have a premium-rate number, you must also offer a standard-rate number you can be contacted on.” This requirement is not complied with as only a premium-rate number is provided on the signs.

(c) 18.8 of the BPA CoP states “You should display the BPA’s AOS logos at all sites.
This will help the public to see that you are a legitimate operator, and show that the site is run properly.” This requirement is not complied with as the BPA’s AOS logos are not displayed at the site.

(d) 18.10 of the BPA CoP states “So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists.” This requirement is not complied with as there not any signs containing the terms and conditions for parking that can be viewed without leaving the vehicle and no sign showing the terms and conditions close to the single parking bay set aside for disabled motorists. The only bay set aside for disabled motorists was covered in ivy making the sign unable to be read. Other signs are located well away from this bay, placed high up with very small lettering and/or hidden by trees. The signs are also contradictory because the sign in front of the disabled bay states “Disabled badge holders only” while the other sign states “Blue badge holders are not exempt and must comply with the above conditions”.

(e) 18.3 of the BPA CoP states “entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore… you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park.” This requirement is not complied with since the entrance sign is placed several metres from the entrance, high up on a wall at 90 degrees to the line of site of a driver approaching the car park making it virtually impossible to see especially at the speed limit of 30mph on the approaching road. The sign also fails to meet the requirements of minimum size, text size, providing a standard rate telephone number, displaying the BPA’s AOS logos as well as those of Appendix B.

(f) Appendix B, Mandatory Entrance Signs, of the BPA CoP states:
(i) “A standard form of entrance sign must be placed at the entrance to the parking area. The AOS roundel must ALWAYS be shown on the sign.” This requirement is not complied with since the AOS roundel is not shown on the entrance sign (or indeed on any of the signs).
(ii) The phrase “managed by” is required to be displayed on the sign. This requirement is not complied with since the phrase is not shown on the sign.
(iii) “The capital height for Group 1 text will depend on the approach speed of traffic. Group 2 text should be at least 50% of this size. All other text should be smaller than 50% of the Group 1 text size.” This requirement is not complied with since the items ‘Private Land’ and ‘Terms and Conditions Apply’ are from Group 2 and are not at least 50% the size of ‘Parking Permit’ which is an item from Group 1 (in fact they are much bigger in size).
(iv) “Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual.” This requirement is not complied with since enforcement is ‘At All Times’ but the signs are neither lit by lighting nor made of retro-reflective material and being placed under a canopy of trees make the signs even more difficult to see.

Apollo18

Coupon-mad wrote: »

Great, a PCS 'Notice to Owner' is not one which is capable of establishing keeper liability.

By them using that version rather than a 'Notice to Keeper' they are not invoking the POFA and clearly they know this is not relevant land. But please spell that out to POPLA as they need help to see it and IMHO, POPLA will even need help to see that a NTO from PCS has none of the wording it would need from para 8 of Schedule 4.

I don't really understand this clearly enough to know what to put in the POPLA appeal. Would you mind explaining it to me in a little more detail so I know what to point out to POPLA?
Should I just point out the omissions in wording compared to para 8 of Sch.4?

Coupon-mad

Yes it is that simple.

What I've done before when doing these sort of appeals is go and grab the whole of paragraph 8, plonk it into my draft appeal and then add comments in red beside each numbered point, such as 'no such wording on the NTO' etc. Make it nice and easy for POPLA, nice and readable because they are on a steep learning curve and aren't yet getting it about 'prescribed wording' being 'mandatory under the statute' (use those sort of words to explain as a conclusion to your demolition of the NTO, why as keeper you cannot be held liable).

They won't know PCS NTOs are not POFA versions, I expect. But once you look you will realise what we mean. The wording isn't there.

Apollo18

Thanks Coupon-mad, I really appreciate the time you have taken helping me out and answering my questions.

By the way, was what I have put in post #36 ok?

I have written a bit more. Not sure if the bit about ALMOs is what I should be writing.

2. The NTO does not comply with the POFA 2012 – not relevant land.

Schedule 4, paragraph 3(1) states “In this Schedule “relevant land” means any land other than—(b) a parking place which is provided or controlled by a traffic authority. (2) “traffic authority” means the following—(e) the council of a county, county borough, London borough or district."
The land in which the alleged parking infringement occurred is land controlled by the traffic authority of the London Borough of Greenwich (of which Wing Parking Ltd purport to be working for) and as such is not relevant land.

4. No standing or authority to pursue charges nor form contracts with drivers.
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right nor to pursue charges for breach in their own name. In the absence of such title, Wing Parking Ltd must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level.
A commercial site agent or ALMO (Arms-Length Management Organisation) acting for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Wing Parking Ltd to strict proof that they have a relevant, contemporaneous contract with the landowner that entitles them to pursue these charges in the courts in their own name as creditor (a requirement of the BPA Code of Practice). Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.

Coupon-mad

I would change the heading as this point is not to do with the NTO (and it is point#3 isn't it, because your point #2 will be the Schedule 4 paragraph 8 demolition job):

Apollo18 wrote: »

3. No keeper liability can be established under the POFA 2012 – not relevant land.

Schedule 4, paragraph 3(1) states “In this Schedule “relevant land” means any land other than—(b) a parking place which is provided or controlled by a traffic authority. (2) “traffic authority” means the following—(e) the council of a county, county borough, London borough or district."
The land in which the alleged parking infringement occurred is land controlled by the traffic authority of the London Borough of Greenwich (of which Wing Parking Ltd purport to be working for) and as such is not relevant land.

It is clear to me that Wing know this, because their back-office debt collector PCS has issued a 'non-POFA version' Notice to 'Owner' (not a Notice to Keeper) as shown above in point #2.

Where private land is controlled by a Council - or by an ALMO (Arms-Length Management Organisation) acting for a Local Authority - it is indisputable that there can be no keeper liability for any alleged parking regime breaches at all. As Wing have shown no evidence as to who was driving and I am the registered keeper, I cannot be held liable under any law. Without the POFA, a parking operator has no lawful way to hold a keeper liable for any private parking charge.

Point #4 looks fine.

Apollo18

So this is what I have written for #2 and #3. Is it ok to leave the annotations as they are in #2?

2. The NTO does not comply with the POFA 2012 – no keeper liability.

Schedule 4, paragraph 4 states “The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle, but the right under this paragraph applies only if—the conditions specified in paragraphs 5, 6, 11 and 12 are met.
A condition of paragraph 6 is that ”the creditor (or a person acting for or on behalf of the creditor)—
has given a Notice to Driver in accordance with paragraph 7, followed by a Notice to Keeper in accordance with paragraph 8”
This condition has not been met because no Notice to Keeper has been sent. I have instead been sent a non-POFA version Notice to Owner and an owner is not legally the same as a keeper and the prescribed wording given by POFA is mandatory under the statute.

Paragraph 8(1) states “A notice which is to be relied on as a Notice to Keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met. No Notice to Keeper has been provided.

(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; No vehicle was specified.
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full; No period of parking was specified.
(c) state that a Notice to Driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f); No such information (i.e. description of charges) as required by 7(2)(b) has been repeated. In fact a higher charge of £120 (not £100 as shown on the Notice to Driver) was shown on the Notice to Owner.
(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver; No NTK provided and the NTO provided does not state that the creditor does not know both the name of the driver and a current address for service for the driver; neither was I as keeper invited to pay the unpaid parking charges.
(f) warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i) the amount of the unpaid parking charges (as specified under paragraph (c) or (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; No such warning was stated on the NTO.
(g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available; No information of the discount was stated on the NTO.
(4) 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. No NTK has been given by any of these means.


3. No keeper liability can be established under the POFA 2012 – not relevant land.

Schedule 4, paragraph 3(1) states “In this Schedule “relevant land” means any land other than—(b) a parking place which is provided or controlled by a traffic authority. (2) “traffic authority” means the following—(e) the council of a county, county borough, London borough or district
The land in which the alleged parking infringement occurred is land controlled by the traffic authority of the London Borough of Greenwich (of which Wing Parking Ltd purport to be working for) and as such is not relevant land.

It is clear to me that Wing know this, because their back-office debt collector PCS has issued a 'non-POFA version' Notice to 'Owner' (not a Notice to Keeper) as shown above in point #2.

Local Authorities cannot use the provisions in Schedule 4. Local authorities already have powers to enforce parking, both on and off road, under the Traffic Management Act 2004 (TMA)

Where private land is controlled by a Council - or by an ALMO (Arms-Length Management Organisation) acting for a Local Authority - it is indisputable that there can be no keeper liability for any alleged parking regime breaches at all. As Wing have shown no evidence as to who was driving and I am the registered keeper, I cannot be held liable under any law. Without the POFA, a parking operator has no lawful way to hold a keeper liable for any private parking charge.