MET Parking Charge @ Bicester Village

unwitting_brewer

Hi,

I have a slightly unusual situation that has arisen as the result of the driver forgetting to pay for a ticket at Bicester Village Station (Chiltern Railways) using RingGo, however payment was made later in the day after the Parking Charge Notice was issued, but before the driver was aware.

I will be appealing on the same basis is this similar case [STRIKE]here [/STRIKE][link blocked due to new account; thread 5262544 refers], but I am curious about whether the late creation of the RingGo parking session would have any bearing.

The following text is based on what what I was planning to write in my appeal before I found this forum and read the Newbie advice. It contains the relevant details of the timing and driver identification has been removed:

[FONT=&quot]The driver received the above Parking Charge Notice whilst parked at Bicester Village train station.[/FONT]

[FONT=&quot]I (the keeper) am appealing the charge on the basis that the driver paid in full for the parking session using RingGo prior to returning to the car and before the driver was aware that the charge notice had been issued. As the amount that the driver paid through RingGo is the same as the fee that would have been due at the time of arriving at the car park, you have not suffered any financial loss and therefore you are not justified in seeking additional compensation.[/FONT]

[FONT=&quot]By way of explanation, I provide the following summary of events: [/FONT]

[FONT=&quot]The driver arrived at the station at 10:nn which is after the time that off-peak fees come into effect. I have enclosed a copy of the driver's train ticket receipt that shows a purchase time of 10:nn. The parking fee that would have been due at that time is £4·50 and is valid for the remainder of the day.[/FONT]

[FONT=&quot]Later in the day, when the driver realised that they had made an honest mistake and had forgotten to activate the RingGo parking session (and prior to having knowledge of the parking charge notice having been issued), the driver immediately created a new RingGo session (copy of invoice is enclosed). This parking session is for off-peak parking that is valid for the entire off-peak portion of the day with a fee of £4·50 which covers the full duration of the parking session.[/FONT]

[FONT=&quot]As explained, the driver made an honest mistake by not booking my parking at the time of arrival, however they rectified this mistake as soon as they became aware. As you have not suffered any financial loss, you are not due compensation and the parking charge notice should be cancelled. The driver will of course endeavour to avoid making this mistake again.[/FONT]

[FONT=&quot]Having re-read this, I now realise that the inclusion of the RingGo receipt will disclose the driver's details, although the receipt could be redacted, the text admits that the RingGo session is created by the driver. I'm not sure whether RingGo would disclose the session creator's details to the PPC.[/FONT]


[FONT=&quot]Anyway, my question is whether the late payment of the parking fee is relevant to the appeal, or does it complicate (and even weaken) the appeal?[/FONT]


[FONT=&quot]Thanks in advance.

[FONT=&quot]EDIT: I have since [FONT=&quot]seen that this P[FONT=&quot]arking Charge Notice refers to a breach of R[FONT=&quot]ailway Byel[FONT=&quot]aw 14 [FONT=&quot]so I believe that m[FONT=&quot]y best bet no[FONT=&quot]w is[FONT=&quot] to [FONT=&quot]string this along to 6 months. [FONT=&quot]Do[FONT=&quot]es that sound correct?[/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT]
[/FONT]

unwitting_brewer

OK. Despite spending several hours researching last night and again today, I am only now starting to get a level of confidence that I understand what I need to do. I do have a couple of questions though.

Given this is a Parking Charge Notice issued at a train station against Railway Byelaw 14, the main argument of the appeal will be that PoFA 2012 cannot be used to enforce the Registered Keeper to disclose the drivers details, or for the RK to be liable. Furthermore, the poor signage means that a contract could not be formed and thereafter not enforced.

I will be using the blue template on the #3 sticky post as the first response ... so this is where my questions come in:

The guidance is slightly unclear about whether it should be the Keeper or the Registered Keeper that files the first response. I would argue that I am the Keeper, but my spouse is the Registered Keeper. This may become relevant once the PPC files the NTK to my spouse rather than me. Is it better that I respond initially to, or shall I get my spouse to respond?

Second question: Is it worth mentioning that PoFA cannot be used with the Byelaw on the first appeal? Perhaps amending the paragraph to read something like this:

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 (which I contest cannot be used on non-relevant land and I will report your abuse of this Act to the DVLA and BPA) and offer me a POPLA code, or cancel the charge.

I'm hoping that mentioning that POFA is irrelevant may encourage them to drop the charge at first appeal. Thoughts?

Thanks!

LoveNorfolk

This is from Pappa Golf's post in another thread, not sure exactly what this means for you, I guess you can appeal but a decision won't be forthcoming yet:

see your other thread , all cases via POPLa involving bylaws are being put on hold


see https://popla.co.uk/


"POPLA has decided to adjourn all cases on which the parking operator has asked the motorist to make a payment in respect of alleged breach of Byelaws. This is following complaints to POPLA and ISPA that POPLA has no authority to look at these appeals. We are considering our position and will make a further statement in due course. We do not anticipate the cases to be adjourned for more than two months from 1 September 2016. Parking operators should not pursue payment while the cases are adjourned. During this period, motorists must still submit their appeal within 28 days of the date of the POPLA code if they want POPLA to consider their appeal. If you have already submitted your appeal you do not need to take further action. "


if popla decide that they are actually bylaw cases , then under bylaws there is no offence of failing to display ticket , and the case must timeout at 6mths

https://forums.moneysavingexpert.com/discussion/5526467

unwitting_brewer

Wow. Timing here could be perfect. If POPLA decides they cannot rule, then all open charge notices should be cancelled (and all paid ones should be refunded). If they decide they can rule, then they should continue to find that PoFA does not apply. Win-win??

LoveNorfolk

unwitting_brewer wrote: »

Wow. Timing here could be perfect. If POPLA decides they cannot rule, then all open charge notices should be cancelled (and all paid ones should be refunded). If they decide they can rule, then they should continue to find that PoFA does not apply. Win-win??

I think so, but one of the more advanced members will probably be able to shed more light on it as it's not something I know about tbh.

Coupon-mad

unwitting_brewer wrote: »

Wow. Timing here could be perfect. If POPLA decides they cannot rule, then all open charge notices should be cancelled (and all paid ones should be refunded). If they decide they can rule, then they should continue to find that PoFA does not apply. Win-win??

Possibly - but probably not, especially the 'refunded' idea! Who would order that, except the DVLA, and the fact that a case cannot be decided by POPLA doesn't necessarily render the charge 'void'.

Have you seen prjohnsonnn10's posts about Chiltern Railways; he is something of a legend regarding his exposure of them:

https://forums.moneysavingexpert.com/discussion/comment/70081446#Comment_70081446

Don't overthink this, it is easy. Simple first appeal from the keeper (can be the blue writing template with a line about bylaws added if you wish) and be careful not to identify the OWNER or the DRIVER.

Appeal as LATE as possible within the 28 days allowed, because you want this to time out (real bylaws penalties time out after just six months if not taken to Magistrates' Court stage by then). So it will end up dead & buried if you string each stage out as late as possible.

If POPLA do end up hearing these cases (I think they will NOT) then it will be a finding of fact that the keeper appellant can't be held liable.

Did you see the this case, where a consumer reclaimed their railway bylaws PCN:

http://parking-prankster.blogspot.co.uk/2016/09/bargepole-assists-motorist-to-reclaim.html

A victory for bargepole who also posts here.

unwitting_brewer

Hi. I am now preparing my POPLA appeal. Please see the text below and let me know if there is anything else that I should include. This is based on the templates in the updated sticky thread.

[FONT=&quot]Re: Appeal code nnnnnnnnnn for MET Parking PCN ABnnnnn of 15 September 2016.[/FONT]

[FONT=&quot]I wish to appeal the above Parking Charge Notice on the basis that:[/FONT]

[FONT=&quot]1. [/FONT][FONT=&quot]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;[/FONT]
[FONT=&quot]2. [/FONT][FONT=&quot]a compliant Notice to Keeper was never served - no Keeper Liability can apply;[/FONT]
[FONT=&quot]3. [/FONT][FONT=&quot]the Operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge;[/FONT]
[FONT=&quot]4. [/FONT][FONT=&quot]no evidence of Landowner Authority; and,[/FONT]
[FONT=&quot]5. [/FONT][FONT=&quot]There is no 'keeper liability' since Byelaws apply at this railway car park.[/FONT]


[FONT=&quot]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.[/FONT][FONT=&quot]

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:
[/FONT][FONT=&quot][FONT=&quot]link removed[/FONT][/FONT]
[FONT=&quot]
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:
link removed

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 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. 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 June 2016, 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 quarter of 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:[/FONT]
[FONT=&quot][FONT=&quot] link removed[/FONT][/FONT]
[FONT=&quot]
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
[/FONT][FONT=&quot][FONT=&quot]link removed[/FONT] [/FONT]

[FONT=&quot]''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:
[/FONT]
[FONT=&quot]link removed[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot] ''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 quarter of 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’:

[/FONT]
[FONT=&quot](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:
[/FONT]
[FONT=&quot]link removed[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot] 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. [/FONT]

[FONT=&quot]Finally, I am aware that this Operator has failed to provide any form of signage at the entrance to the car park which is a clear breach of the BPA Code of Practice section 18.2 which reads:[/FONT]

[FONT=&quot]18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, 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, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.[/FONT]

[FONT=&quot]The lack of an entrance sign failed to allow the driver fair opportunity to enter into a contract or agreement with the Operator, hence no such contract or agreement exists.[/FONT]


[FONT=&quot]A compliant Notice to Keeper was never served - no Keeper Liability can apply.[/FONT][FONT=&quot]

This Operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(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;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition 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. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this Operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.[/FONT]


[FONT=&quot]The Operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.[/FONT][FONT=&quot]

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an Operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an Operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the Operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the Operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the Operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''[/FONT]


[FONT=&quot]No evidence of Landowner Authority - the Operator is put to strict proof of full compliance with the BPA Code of Practice.[/FONT][FONT=&quot]

As this Operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this Operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this Operator to strict proof of full compliance:

7.2 If the Operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d) who has the responsibility for putting up and maintaining signs

e) the definition of the services provided by each party to the agreement[/FONT]


[FONT=&quot]There is no 'keeper liability' since Byelaws apply at this railway car park. [/FONT][FONT=&quot]

This is not relevant land under PoFA 2012. This particular site fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the Operator to pursue this matter with myself (the keeper). [/FONT]

[FONT=&quot]The Operator is attempting to claim an unenforceable charge from the keeper (myself). No keeper liability is likely to apply at all, due to Chiltern Railway’s Byelaws taking precedence, and rendering this land outwith PoFA and outwith 'registered keeper liability'. [/FONT]

[FONT=&quot]For this Operator to assume that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Byelaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. Such land is generally not 'relevant land' under the definition within POFA and if the Operator contends otherwise they will need to show POPLA documentary evidence from the landowner/client in possession of this site, or maps showing where the Byelaws cease to apply around this railway.[/FONT]


[FONT=&quot]That completes my case for appeal. I request that my appeal is upheld.[/FONT]

[FONT=&quot]I would also like to formally request to see all evidence presented by the Operator regarding this appeal and the opportunity to refute any evidence submitted by Indigo regarding this appeal.[/FONT]

[FONT=&quot]
[/FONT]
Thank you in advance.

pappa_golf

is it met or indigo?

unwitting_brewer

Good catch--it is MET, but I've tried to keep the wording generic (apart from my copy-paste error from another example).

I've changed the last line to "[FONT=&quot]I would also like to formally request to see all evidence presented by the Operator regarding this appeal and the opportunity to refute any evidence submitted by them regarding this appeal.[/FONT]"

Coupon-mad

Looks good to go.

unwitting_brewer

Thank you for your responses. I have submitted the appeal online and I'll be sure to update this post when I hear back.