UKPC 2nd letter stage

hineyb

Continued...

6. No legitimate interest in enforcing a charge – (ParkingEye vs Beavis Case is not relevant to this appeal)

The Operator has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term. This case can easily be distinguished from the ParkingEye v Beavis case. With regards to the location and type of the car park and the interests of the operator, there is no comparison with the Beavis decision. The legitimate interest lies with the tenant of the flat to which this bay is allocated and as stated this vehicle was fully permitted by them to park there. As the parking bay is already paid for in a separate contract, no loss has been incurred by Minster Baywatch nor do any of the commercial justifications judged to be present in that case apply here.

The Operator may seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that ParkingEye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in paragraph 97 of the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;-
b. The desirability of that parking being free so as to attract customers;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants business, for example by commuters going to work or shoppers going to off-park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons. In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, the Operator has made no loss and the charge remains a penalty. The vehicle was fully entitled to be parked as it was – as stated in the tenancy agreement (enclosed) there is no requirement to display any permit and the parking bay is already paid for in the monthly rent, as agreed in the contract between the tenant and letting agent.

Further to this, this residential car park can only be accessed with permission from the tenants or landowner as there is an electronic entry system to unlock the gates. Therefore the general public are unable to access this private resident’s car park in the same way as that of the Parking Eye vs Beavis case - so there is no legitimate commercial interest in enforcing a charge to ensure a turnover of customer vehicles. In further contrast to the Beavis case, these penalty charges cannot be expected to underwrite any free parking for customers – this is a purely residential car park so no free parking is offered to any customers, and secondly the resident already pays for their allocated parking spaces through their rental agreement.

The Operator has no legitimate interest in enforcing this charge; their only interest is to seek to profit and intimidate genuine residents into paying their speculative invoices – for parking in a bay they have already paid for and have every right to park in. Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation it is impossible, without intellectual dishonesty, to believe that they would determine that this alleged offence would justify such a disproportionate, extravagant and unconscionable charge when the vehicle was parked in the flat’s own allocated bay where it has every entitlement to.

Careful analysis of the Supreme Court judgment is not, as the Operator may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest.

With regards to the findings of the ParkingEye vs Beavis case regarding signage and its application to this case, the sum of £100 is not communicated to drivers clearly and unambiguously. Therefore, it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver is unable to read the sum of the parking 'charge' (the £100 in this case) before parking - because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it. I refer you to the enclosed photographs of the signage on the site displaying the view of the signage from a driver’s seat.

The Beavis case depended upon clear, prominent and unambiguous signage and equally, a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule in that case only. It may be useful to refer to but it cannot be used to strike out the majority of private parking ticket appeals. The signs provided do not clearly state the amount that will be charged to motorists that do not comply with the terms and conditions of parking at the location. The signage in place at the location is not “conspicuous” or “legible” as required under the BPA Code of Practice. It therefore does not meet the standards outlined by the Supreme Court in that the “wording of the notices” is not sufficiently “clear” to bring the parking charge to the attention of the appellant and other motorists who use this car park.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed the following in writing, as the official POPLA policy regarding the requirement for proper application of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.

Yours sincerely
R Reeve
POPLA Administrative Team”

The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine, that due to the facts of this particular charge in this car park with completely different features, and with these signs, the Beavis case does not assist them at all.
UKPC have failed to comply and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

I have made my detailed submission to show how the applicable law (POFA) supports my appeal, which I submit should now be determined in my favour.

This concludes my POPLA appeal.

Yours faithfully,

Coupon-mad

You need a 'no keeper liability' point first, explaining either that MB never sent you a Notice to Keeper in the post at all - or that you got one late or that it was not compliant.

Otherwise saying that they haven't shown who the driver was makes little sense if you've not explained by they are not covered by the POFA for keeper liability.

hineyb

Ok where can i see about compliance? as i am sure they sent it on time and i did get one...

Umkomaas

You need to check the NtK meticulously and pedantically against PoFA Schedule 4 para 8 for windscreen tickets or para 9 for ANPR tickets. It has to meet the requirements perfectly for it to be fully compliant. There are no 'near enoughs' acceptable!

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

You can also use this link.

http://www.parkingcowboys.co.uk/keeper-liability/

hineyb

so as you can see in the below they put the address slighty wrong as its actually stephenson wharf where i parked.. also the observation time although its rubbed off it says 0544 time first seen and 0544 issue time.. therefore i didnt have a grace period...


Also on the below NTK it doesnt say about any discount allowed?and again the address is wrong? also i circled the bit about a contract? did the driver enter a contract is this correct?


Please advise if i can add any of these to my popla appeal

thanks guys

Coupon-mad

OK - as you showed us the PCN number we can look up and view photos on UKPC's website. You may not want the World and his wife to be able to do that - or possibly use the data without your permission - so I'd suggest you remove the NTK photo now.

But I was able to see there was no sign beside those yellow lines nor adjacent to your car at all, and the one they showed has illegible terms and the charge must be hidden in small print because it's unreadable. So in THIS case which is about parking on double yellows I would suggest the following changes (below in a separate post).

I can see the NTK was served in time but shows no 'period of parking' (not a great argument but it'll do, worth mentioning)! Therefore no evidence of a Grace Period allowed.

I'd suggest several changes to your draft, not least because you had lots of rogue 'Minster Baywatch' refs in it!

Coupon-mad

1) (a) The signs in this car park are not prominent, clear or legible from the place the car stopped [STRIKE]all parking spaces[/STRIKE] and (b) there is insufficient notice of the sum of the parking charge itself and (c) double yellow lines do not mean 'no stopping' and cannot give rise to an immediate ticket without observation to discount exempt activity.

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, 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, there was no sign at all shown adjacent to or within legible distance of the car. The double yellows here, alongside this garage, are unsigned so the ordinary meaning in UK law of 'double yellow lines' MUST be taken to be the case. Where there is ambiguity of terms of any contract, the doctrine of 'contra proferentem' applies and the interpretation which MOST favours a consumer must apply in law.

Contrary to popular belief (and UKPC's made-up rules), I am sure POPLA Assessors are fully aware that the meaning of otherwise unmarked double yellow lines in England & Wales is NOT a ban on all parking and certainly not a 'no-stopping zone'. Nor can a run of single or double yellows in any way be interpreted to be the same as a red route/hatched or zigzag lines area, where immediate ticketing can be appropriate. I contend that it is a fact that a car is allowed to stop to unload/load on double yellows in England and Wales, unless a loading ban is also in force and clearly signed. This is trite law, established for many years under Dept for Transport policy and is set out clearly within the Highway Code (and does not require a person to be with the car at all times).

Although there was NO sign adjacent to these double yellows, I would like to add that generally at this location, the signs are sporadically placed, [STRIKE]indeed obscured and hidden in some areas. They are[/STRIKE] 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. [STRIKE](and does not feature at all on some of the signs).[/STRIKE]

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.

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 elsewhere in the site [STRIKE]or pole[/STRIKE] 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, [STRIKE]or pole[/STRIKE], 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 [STRIKE]stepladder (and perhaps a torch and/or[/STRIKE] magnifying glass to be able to read the terms.

Yet the car was not even shown by UKPC to be parked anywhere near any terms at all.

Nor was £100 charge mentioned on the permit itself, nor in the agreement when the permit was supplied, which in fact is when the parking permit contract was concluded. Nothing in the permit paperwork mentioned that any extra terms on signs from a third party - which could theoretically change from one day to the next - were in any way incorporated into the contract when the resident agreed to accept the terms of use of the permit.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of authorised, permit-displaying 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, right next to every area where parking was supposedly 'not allowed'. Those areas must also be clearly marked as no-stopping/no loading - e.g. with yellow hatched or zig-zag lines - if the meaning was intended that no cars can stop, park or unload there at all. [STRIKE]with fewer words and more 'white space' as background contrast. [/STRIKE]

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.

Although these double yellow lines (with no qualifying warning sign beside them) might in the minds of UKPC staff, somehow carry a different meaning as if it is a 'red route/no stopping zone(!)' there are NO adjacent signs on the wall there to support that view, which flies in the face of the accepted meaning of double yellows. On-street, loading/unloading activity is fully allowed (or assisted boarding/alighting) for up to 20 minutes which require a strict 11 minute minimum observation time (not immediate ticketing, under any circumstances). That specific 11 minutes allowance is a Local Authority one but it is acknowledged by the BPA and there is no reason for a driver to conclude that THESE double yellows have different rules, especially when private land also has Grace Periods as part of the BPA CoP.

Exempt activity cannot be discounted because there was no observation time/Grace Period allowed. There are also other exemptions relating to double yellow lines, such as fetching a permit or fetching a Blue Badge (the latter enabling a full three hours unhindered, free parking on double yellows, for example). Further, the lease affords residents with permits, prescribed easements and rights of way to garages and premises, which supersede any random terms that UKPC have tried to introduce. So it is far from transparent to permit-holding drivers stopping in good faith, that in this specific area of double yellows, an immediate £100 PCN can possibly arise.

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, [STRIKE]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,[/STRIKE] 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.



2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

The Notice to Keeper omits any 'period of parking' (and the PCN has no observation of any 'parking period' either, as opposed to loading time) so keeper liability is not established.

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.

[STRIKE]Where a charge is aimed only at a driver then, of course, no other party can be told to pay.[/STRIKE] 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 because the fact remains I am only 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, 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.

Furthermore, the vital matter of full compliance with the POFA 2012 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 [STRIKE]is NOT attempting to[/STRIKE] has failed to comply and transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''[STRIKE]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,[/STRIKE] 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' [STRIKE]or 'User Manual'[/STRIKE] setting out details including exemptions - such as any [STRIKE]'genuine customer' or[/STRIKE] 'genuine resident' or loading/unloading exemptions or grace periods or any [STRIKE]site occupier's[/STRIKE] 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do.

[STRIKE]and any circumstances where the landowner /firms on site in fact have a right to cancellation of a charge. [/STRIKE]

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 for permit holders, grace periods (which is relevant because here, no 'Grace Period' was allowed, as proved by the PCN having zero observation period when the ticketer pounced [STRIKE]I believe may be longer than the bare minimum times set out in the BPA CoP[/STRIKE]) 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. No contract exists in a Trespass case - (ParkingEye vs Beavis Case is not relevant)
With reference to Case B6QZ4H3R, before Deputy District Judge Ellington, UKPC v Mr M [2016], another case concerning where “Permit Only” parking was breached. In the judgement for the above case, the judge stated “the signage displayed clearly only made an offer of parking to permit holders, and therefore only permit holders could be bound by the contractual terms conveyed. The circumstances of this were different from Beavis, and therefore that ruling did not assist the claimant in this case.

Any remedy for parking without a permit could only lie with the freeholder, under a tort of trespass. But that wasn’t being claimed here, and the present claimant [STRIKE]has[/STRIKE] had no cause of action, so the claim was dismissed. [STRIKE]”[/STRIKE]

In the case under appeal here, if the permit-displaying vehicle was unauthorised to park [STRIKE]parked without a permit or was “not an authorised user”[/STRIKE] as alleged by [STRIKE]Minster Baywatch[/STRIKE] UKPC, they were in fact a trespasser and it is the landowner who has the right to pursue for damages, not the Parking Operator. Such damages would be exactly that – the amount of damage created in the act of trespass, which was indisputably, zero. [STRIKE]Considering this parking bay was paid for by the tenant and aside from the alleged lack of permit on display, would otherwise be considered to be parked correctly in their allocated bay, the amount of damages would be negligible.[/STRIKE]


[STRIKE]5. No standing or authority from the landowner to enforce this charge

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, [STRIKE]Minster Baywatch[/STRIKE] UKPC must have assignment of rights from the landowner to pursue charges for breach in their own right - which they do not.

Section 7.1 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land.

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

In addition, Section 7.3 of the BPA CoP states:

“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.''

I therefore put [STRIKE]Minster Baywatch[/STRIKE] UKPC to provide strict proof to POPLA and myself with an unredacted, contemporaneous copy of the contract between the operator and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights which have been properly assigned to UKPC. [STRIKE]Minster Baywatch[/STRIKE].

Please note that a redacted or out of date copy of any such contract cannot be accepted as valid evidence and has been rejected as such in previous POPLA decisions for this reason – see POPLA appeal 6062785103 dated 07/01/2016.
[/STRIKE]
I also refer you to the case at Winchester County Court of R.L Davey v UKPC where UKPC were obliged to pay Mr. Davey a total of £1,430.26 in costs and damages after persistently ticketing his vehicle on his private property (in a residential car park allocated to a flat such as this one) despite his warnings.

The Assured Shorthold Tenancy (Appendix 1) makes no mention of not stopping on unsigned double yellow lines for exempt activity, as would normally be deemed allowable. [STRIKE]the requirement to display a permit[/STRIKE]. Therefore [STRIKE]Minster Baywatch[/STRIKE] UKPC have no authority to issue a Parking Charge Notice as this AST supersedes any agreement they might have with a management or letting agency. As stated, the terms of this contract, the easements and rights of way and the terms accepted with the permit [STRIKE]in which the tenant pays for the parking bay [/STRIKE]overrides any contract the Operator may or may not have with the management agency.



^^^
NB - I removed #5 as it repeated #3! Now you just need to tack on #6, change it to #5, remove 'Minster Baywatch' and any 'parking in a paid-for parking space' (not relevant!).

hineyb

Hi Coup

thanks for your help again

i have been ill for a few days and just caught up with work

i have done the amendments please check and confirm we are good to send

I am the registered keeper and I wish to appeal a recent parking charge from UKPC on 10/06/2016 05:44 at Apsley Lock. I submit the points below to show that I am not liable for the parking charge:

1) 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
2) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4) No contract exists in a Trespass case - (ParkingEye vs Beavis Case is not relevant)

5) No legitimate interest in enforcing a charge – (ParkingEye vs Beavis Case is not relevant to this appeal)
1)(a) The signs in this car park are not prominent, clear or legible from the place the car stopped and (b) there is insufficient notice of the sum of the parking charge itself and (c) double yellow lines do not mean 'no stopping' and cannot give rise to an immediate ticket without observation to discount exempt activity.

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, 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, there was no sign at all shown adjacent to or within legible distance of the car. The double yellows here, alongside this garage, are unsigned so the ordinary meaning in UK law of 'double yellow lines' MUST be taken to be the case. Where there is ambiguity of terms of any contract, the doctrine of 'contra proferentem' applies and the interpretation which MOST favours a consumer must apply in law.

Contrary to popular belief (and UKPC's made-up rules), I am sure POPLA Assessors are fully aware that the meaning of otherwise unmarked double yellow lines in England & Wales is NOT a ban on all parking and certainly not a 'no-stopping zone'. Nor can a run of single or double yellows in any way be interpreted to be the same as a red route/hatched or zigzag lines area, where immediate ticketing can be appropriate. I contend that it is a fact that a car is allowed to stop to unload/load on double yellows in England and Wales, unless a loading ban is also in force and clearly signed. This is trite law, established for many years under Dept for Transport policy and is set out clearly within the Highway Code (and does not require a person to be with the car at all times).

Although there was NO sign adjacent to these double yellows, I would like to add that generally at this location, the signs are sporadically placed 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.

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.

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 elsewhere in the site 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, 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 magnifying glass to be able to read the terms.

Yet the car was not even shown by UKPC to be parked anywhere near any terms at all.

Nor was £100 charge mentioned on the permit itself, nor in the agreement when the permit was supplied, which in fact is when the parking permit contract was concluded. Nothing in the permit paperwork mentioned that any extra terms on signs from a third party - which could theoretically change from one day to the next - were in any way incorporated into the contract when the resident agreed to accept the terms of use of the permit.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of authorised, permit-displaying 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, right next to every area where parking was supposedly 'not allowed'. Those areas must also be clearly marked as no-stopping/no loading - e.g. with yellow hatched or zig-zag lines - if the meaning was intended that no cars can stop, park or unload there at all.

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.

Although these double yellow lines (with no qualifying warning sign beside them) might in the minds of UKPC staff, somehow carry a different meaning as if it is a 'red route/no stopping zone(!)' there are NO adjacent signs on the wall there to support that view, which flies in the face of the accepted meaning of double yellows. On-street, loading/unloading activity is fully allowed (or assisted boarding/alighting) for up to 20 minutes which require a strict 11 minute minimum observation time (not immediate ticketing, under any circumstances). That specific 11 minutes allowance is a Local Authority one but it is acknowledged by the BPA and there is no reason for a driver to conclude that THESE double yellows have different rules, especially when private land also has Grace Periods as part of the BPA CoP.

Exempt activity cannot be discounted because there was no observation time/Grace Period allowed. There are also other exemptions relating to double yellow lines, such as fetching a permit or fetching a Blue Badge (the latter enabling a full three hours unhindered, free parking on double yellows, for example). Further, the lease affords residents with permits, prescribed easements and rights of way to garages and premises, which supersede any random terms that UKPC have tried to introduce. So it is far from transparent to permit-holding drivers stopping in good faith, that in this specific area of double yellows, an immediate £100 PCN can possibly arise.

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 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.



2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

The Notice to Keeper omits any 'period of parking' (and the PCN has no observation of any 'parking period' either, as opposed to loading time) so keeper liability is not established.

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.

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 because the fact remains I am only 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, 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.

Furthermore, the vital matter of full compliance with the POFA 2012 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 has failed to comply and transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

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' setting out details including exemptions - such as any 'genuine resident' or loading/unloading exemptions or grace periods or any 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do.



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 for permit holders, grace periods (which is relevant because here, no 'Grace Period' was allowed, as proved by the PCN having zero observation period when the ticketer pounced 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. No contract exists in a Trespass case - (ParkingEye vs Beavis Case is not relevant)
With reference to Case B6QZ4H3R, before Deputy District Judge Ellington, UKPC v Mr M [2016], another case concerning where “Permit Only” parking was breached. In the judgement for the above case, the judge stated “the signage displayed clearly only made an offer of parking to permit holders, and therefore only permit holders could be bound by the contractual terms conveyed. The circumstances of this were different from Beavis, and therefore that ruling did not assist the claimant in this case.

Any remedy for parking without a permit could only lie with the freeholder, under a tort of trespass. But that wasn’t being claimed here, and the present claimant had no cause of action, so the claim was dismissed. ”

In the case under appeal here, if the permit-displaying vehicle was unauthorised to park as alleged by UKPC, they were in fact a trespasser and it is the landowner who has the right to pursue for damages, not the Parking Operator. Such damages would be exactly that – the amount of damage created in the act of trespass, which was indisputably, zero.


I also refer you to the case at Winchester County Court of R.L Davey v UKPC where UKPC were obliged to pay Mr. Davey a total of £1,430.26 in costs and damages after persistently ticketing his vehicle on his private property (in a residential car park allocated to a flat such as this one) despite his warnings.

The Assured Shorthold Tenancy (Appendix 1) makes no mention of not stopping on unsigned double yellow lines for exempt activity, as would normally be deemed allowable. . Therefore UKPC have no authority to issue a Parking Charge Notice as this AST supersedes any agreement they might have with a management or letting agency. As stated, the terms of this contract, the easements and rights of way and the terms accepted with the permit overrides any contract the Operator may or may not have with the management agency.

hineyb

continued...

5. No legitimate interest in enforcing a charge – (ParkingEye vs Beavis Case is not relevant to this appeal)

The Operator has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term. This case can easily be distinguished from the ParkingEye v Beavis case. With regards to the location and type of the car park and the interests of the operator, there is no comparison with the Beavis decision. The legitimate interest lies with the tenant of the flat to which this bay is allocated and as stated this vehicle was fully permitted by them to park there. As the parking bay is already paid for in a separate contract, no loss has been incurred by UKPC nor do any of the commercial justifications judged to be present in that case apply here.

The Operator may seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that ParkingEye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in paragraph 97 of the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;-
b. The desirability of that parking being free so as to attract customers;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants business, for example by commuters going to work or shoppers going to off-park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons. In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, the Operator has made no loss and the charge remains a penalty. The vehicle was fully entitled to be parked as it was – as stated in the tenancy agreement (enclosed) there is no requirement to display any permit and the parking bay is already paid for in the monthly rent, as agreed in the contract between the tenant and letting agent.

Further to this, this residential car park can only be accessed with permission from the tenants or landowner as there is an electronic entry system to unlock the gates. Therefore the general public are unable to access this private resident’s car park in the same way as that of the Parking Eye vs Beavis case - so there is no legitimate commercial interest in enforcing a charge to ensure a turnover of customer vehicles. In further contrast to the Beavis case, these penalty charges cannot be expected to underwrite any free parking for customers – this is a purely residential car park so no free parking is offered to any customers, and secondly the resident already pays for their allocated parking spaces through their rental agreement.

The Operator has no legitimate interest in enforcing this charge; their only interest is to seek to profit and intimidate genuine residents into paying their speculative invoices – for parking in a bay they have already paid for and have every right to park in. Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation it is impossible, without intellectual dishonesty, to believe that they would determine that this alleged offence would justify such a disproportionate, extravagant and unconscionable charge when the vehicle was parked in the flat’s own allocated bay where it has every entitlement to.

Careful analysis of the Supreme Court judgment is not, as the Operator may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest.

With regards to the findings of the ParkingEye vs Beavis case regarding signage and its application to this case, the sum of £100 is not communicated to drivers clearly and unambiguously. Therefore, it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver is unable to read the sum of the parking 'charge' (the £100 in this case) before parking - because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it. I refer you to the enclosed photographs of the signage on the site displaying the view of the signage from a driver’s seat.

The Beavis case depended upon clear, prominent and unambiguous signage and equally, a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule in that case only. It may be useful to refer to but it cannot be used to strike out the majority of private parking ticket appeals. The signs provided do not clearly state the amount that will be charged to motorists that do not comply with the terms and conditions of parking at the location. The signage in place at the location is not “conspicuous” or “legible” as required under the BPA Code of Practice. It therefore does not meet the standards outlined by the Supreme Court in that the “wording of the notices” is not sufficiently “clear” to bring the parking charge to the attention of the appellant and other motorists who use this car park.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed the following in writing, as the official POPLA policy regarding the requirement for proper application of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.

Yours sincerely
R Reeve
POPLA Administrative Team”

The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine, that due to the facts of this particular charge in this car park with completely different features, and with these signs, the Beavis case does not assist them at all.
UKPC have failed to comply and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

I have made my detailed submission to show how the applicable law (POFA) supports my appeal, which I submit should now be determined in my favour.

This concludes my POPLA appeal.

Yours faithfully,

Umkomaas

Almost 5,000 words! One of the main reasons I gave up trying to critique POPLA appeals.