Is this POPLA appeal letter good enough?

smiledotcom

I received a parking charge at my place of work (NHS Hospital in England) because I had put last years permit on my windscreen instead of this years. I appealed to CP Plus thus:


I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers before they park.

Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. I believe the driver may well be eligible for cancellation and you have omitted clear information about the process for complaints including a geographical address of the landowner.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,


and they rejected my appeal thus:

Thank you for your correspondence regarding the above Parking Charge Notice (PCN).

After carefully considering the points made in your appeal, I am unable to offer you a cancellation as I am satisfied that the PCN was issued correctly and in compliance with the site’s parking terms and conditions.

The PCN was issued because your vehicle was observed, parked on site without displaying a valid staff permit, please see the images attached.

Your PCN has been held at the discounted rate and you have 14 days from the date of this email to pay the reduced charge of £20.00. After this period the charge will revert to the full amount.

Please call the automated payment line on 0845 070 4277, calls to this number are charged at 2 pence per minute and your telephone provider will charge an access fee for using this service, or go online to https://www.cp-plus.co.uk to pay the charge, quoting your PCN number. Payment can also be made by sending a cheque or postal order payment to the PO Box address below, making note of your PCN reference on the back. Please note that there is an administration fee of £1.50 when paying online or by phone.

You have now reached the end of our internal appeals procedure. If you are not satisfied with the outcome of the appeals process, there is an independent appeals service (POPLA) that you can use. You must appeal to POPLA within 28 days of rejection using verification code xxxxx and by following the link https://www.popla.co.uk.



This is my appeal to POPLA. Is it good enough?

[COLOR="rgb(46, 139, 87)"]Dear POPLA Assessor,

I wish to appeal a recent parking charge (PCN No xxxxxx as the registered keeper of vehicle registration number xxxxxxx, using POPLA code xxxxxxx.
I was very surprised to receive a 'Charge Notice' for my vehicle. I challenged this ‘PCN’ as keeper of the car but my appeal was rejected by CP Plus.

My appeal is based on the points below:

1. Keeper Liability Requirements and the Protection of Freedom Act

CP Plus does not adhere to POFA 2012:

• No Keeper liability, there has been no admission on who was driving the vehicle and no evidence on this has been provided. Schedule 4 of POFA 2012 strictly requires the issue of Notice to Keeper compliant with specific provisions:
-The Charge Notice sent by CP Plus does not identify them as the Creditor.
-The parking charge does not provide any evidence where the car was parked.


2. CP Plus has no contractual authority / Authority to Issue Tickets[/COLOR]

In the notices they have sent me, CP Plus have not shown any evidence that they have any proprietary interest in the car park in question. Also, they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. CP Plus contract with the Land owner needs to state that CP Plus are entitled to pursue matters such as the issue of Parking Charge Notices and enforce them through the courts in their (land owner) own name. This should be an actual copy and not just a document that claims a contract or agreement exists. Please note that a 'Witness Statement' to the effect that a contract is in place between CP Plus and the landowner will be insufficient to provide all the required information, and it will therefore be unsatisfactory. Furthermore, I specially ask whether the land owner allows CP Plus to pursue genuine customers with demands for payments regarding parking charges or whether there are clauses regarding first time breaches.

Thanks in advance for any advice

Umkomaas

Sorry, but nowhere near enough points covered. You're highly unlikely to win on that.

Have you read the newbies FAQ sticky, post #3 which starts you off on the road to POPLA?

Also, the POPLA Decisions sticky, especially this last week of posts where Coupon-mad has produced near-template appeal points for POPLA (but don't blindly copy and paste, check your parking event 'fits' with the points made).

A comprehensive POPLA appeal will need to cover as a minimum most of the following:

No keeper liability, including Notice to Keeper errors (PoFA 2012)
No Contract to manage parking
No Locus Standi
Signage
Consumer Rights Act 2015
BPA Code of Practice breaches
Why Beavis doesn't apply in your parking event

Do a forum search on 'CP Plus POPLA' - check 'Show Posts', not the default 'Show Threads' for a more comprehensive return. This will bring up any CPP POPLA appeals - read only those from the past 3-4 months.

Have you complained to your employer/Trade Union?

smiledotcom

Thanks, Umkomaas,

I have redrafted my POPLA appeal as per your advice - and as far as I was able to dig out that which you suggested! Whilst searching the forum posts I came across a recent one from Gadfium - who won POPLA appeal purely on the basis that the operator hadn't responded to their appeal within 14 days.

That really set my heart racing because CP Plus didn't respond to my 6Aug appeal until 23 Aug - a whopping 17 days later!!!!

Anyway, in an effort to cover as many bases as possible I have added more appeal points as you've suggested.

This is how my POPLA appeal now looks. Is it good enough now? Thanks in advance for any further advice.

Dear POPLA Assessor,

I wish to appeal a recent parking charge (PCN No xxxxxx as the registered keeper of vehicle registration number xxxxxxx, using POPLA code xxxxxxx.
I was very surprised to receive a 'Charge Notice' for my vehicle. I challenged this ‘PCN’ as keeper of the car but my appeal was rejected by CP Plus.

My appeal is based on the points below:

1. Failure of the Private Parking Company to adhere to the BPA Code of Practice
In direct contravention of Clause 22.8 of the British Parking Association’s Code of Practice, to which CP Plus must abide, states that members of the BPA must “acknowledge or reply to the challenge within 14 days of receiving it". The initial appeal was lodged on CP Plus' online system on 6 Aug 2016. CP Plus did not respond until the 23 Aug 2016, where they rejected the initial appeal.

CP Plus is in clear breach of the code that they are to operate under. As such I reject their claims. As such I will be lodging an official complaint with the local Trading Standards office.



2. No keeper liability.
A Notice to Keeper has not been issued. As there has been no admission regarding who was driving the vehicle and no evidence of this has been provided, the Private Parking Operator has failed to comply with the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012.

Paragraph 4 of The Act states that

(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if— (a) the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met
The condition specified in paragraph 6 “is that the creditor (or a person acting for or on behalf of the creditor)—
(a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or
(b) has given a notice to keeper in accordance with paragraph 9.”
Paragraph 9 states this notice to keeper must be given within a "period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given"

As the registered keeper of the vehicle I have not received a Notice to Keeper. As you can see, the law is unequivocal on this matter. A Notice to Keeper must be served where the driver has not been identified. Without this, the creditor does not have the right to recover the charge from the keeper of the vehicle. For this reason my appeal must be upheld.


3. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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. 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 is NOT attempting to 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 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.''

4. CP Plus has no contractual authority / Authority to Issue Tickets

In the notices they have sent me, CP Plus have not shown any evidence that they have any proprietary interest in the car park in question. Also, they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. CP Plus contract with the Land owner needs to state that CP Plus are entitled to pursue matters such as the issue of Parking Charge Notices and enforce them through the courts in their (land owner) own name. This should be an actual copy and not just a document that claims a contract or agreement exists. Please note that a 'Witness Statement' to the effect that a contract is in place between CP Plus and the landowner will be insufficient to provide all the required information, and it will therefore be unsatisfactory. Furthermore, I specially ask whether the land owner allows CP Plus to pursue genuine customers with demands for payments regarding parking charges or whether there are clauses regarding first time breaches.


5. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

http://imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

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

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

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

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

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

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

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

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

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

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

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

6. Failure to provide the contract to evidence that CP Plus has any Standing or Authority to pursue charges or form contracts (Locus Standii)
CP Plus has not produced any evidence to show that they have any legal right to issue charges on behalf of the landowner. They have provided a witness statement but not any of the requested detail to show detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). There is also no proof that the alleged signatory on behalf of the landowner has ever seen the relevant contract or, indeed, is even an employee of the landowner. It is my contention that this witness statement should be disregarded as unreliable, not proving full BPA compliance and is not sufficient to prove that CP Plus have the necessary legal standing at this location to bring a claim in their own name nor to form any contractual relationship between the landowner and motorists. I detailed this in Section 4 of my appeal letter, yet CP Plus has chosen to ignore this.
I also refer to the fact that the “old” POPLA service ALWAYS found in favour of the appellant where the PPC had not proved that they had the authority of the landowner, in accordance with Section 7 of the BPA Code of Practice. Please note that this practice included disregarding any evidence not shown to an appellant, so the operator cannot add it now for Wright Hassel to consider. The Operator has not shown a full unredacted copy of the contract that allows them to act (as detailed above).

For clarity, the BPA Code clearly states that
“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”

CP Plus has not provided the adjudicator any evidence to show that they have authority to issue charges in line with the BPA Code. The Operators evidence fails to show any of the BPA requirements then the omissions must be interpreted in the way which favours the consumer. I request that you uphold my appeal on this point.

In addition, I refer to POPLA case reference 1771073004 where the assessor ruled that a witness statement was not valid. This witness statement, based on the template provided by the POPLA Lead Adjudicator, concerned evidence which could have been produced but was not. This is exactly analogous to the current case if the operator produces a witness statement regarding contract documents between he operator and the landowner; the alleged contract is a document which the operator could produce (if it exists) but chooses not to. I request therefore that the “new” POPLA is consistent with the “old” POPLA scheme in its processes and also rules any witness statement produced by the operator invalid.

Coupon-mad

That's good. All I suggest is remove point #4 because it's the same as #6 (and #6 is better).

smiledotcom

I emailed off my POPLA appeal today - in line with the advice I received here.

Now I'm wondering if, during the appeal lodging process on the POPLA website if I identified myself as driver by mistake?

The reason I ask is because POPLA have notified CP Plus of my appeal including this wording:

For the purpose of clarity, [my name] is raising the issue on behalf of [my name]. If these names are different, it is because a third party is appealing on behalf of the party who received the parking charge notice.

I had submitted my original appeal to CP Plus as the keeper, not driver. I also submitted my POPLA appeal as the keeper, not the driver, of the vehicle - or so I thought. (My POPLA appeal letter was "reviewed/approved" by the very helpful, regular, parking forum posters)

I'm just wondering if I need to reiterate to CP Plus and POPLA that my appeals is being made on the basis of me being the keeper, but not the driver, of the vehicle?

I have 7 days in which to change anything relating to my appeal.

Thanks in advance for any advice

Fruitcake

I cannot see anywhere in your PoPLA appeal where you have revealed the driver's details, or it could conceivably be concluded that you were the driver.

I don't really understand what the PoPLA comments mean, but I can see no cause for concern on your part.

Umkomaas

Fruitcake wrote: »

I cannot see anywhere in your PoPLA appeal where you have revealed the driver's details, or it could conceivably be concluded that you were the driver.

I don't really understand what the PoPLA comments mean, but I can see no cause for concern on your part.

I suspect it's a template type letter, set up like a mail merge, with the POPLA assessor filling in a few 'fields' before firing the 'Send' button.