Park Watch Parking Charge Notice newbie help needed

Coupon-mad

Fair enough, they are a small firm, not often featuring here. You will easily beat them.

So to point you in the right direction I found this similar one about the same sort of contravention, where that person had also only had a windscreen PCN and was never sent a Notice to Keeper (because we encourage people to appeal after 3 weeks to take the PPC's eye off the ball!):

https://forums.moneysavingexpert.com/discussion/5538558

So, he mentions 3 points of appeal he intended to use and I added that 'unclear signs' must always be a point, as well. To find those four template appeal points, go to 'POPLA Decisions' at the top of the forum and you will find those 4 appeal points set out by me in September. They can be copied verbatim.

Time your POPLA appeal as late as possible - as discussed on that linked thread - and by all means show us your draft appeal even if it is just the 4 relevant appeal points copied from 'POPLA Decisions' (which is fine to do, that is what they are there for and the length of these appeal points is deliberate!).

Kshah786

Hi I have used the search part. But I can't find park watch popla appeal. I cant seem to find a popla appeal similar to mine.

Umkomaas

Kshah786 wrote: »

Hi I have used the search part. But I can't find park watch popla appeal. I cant seem to find a popla appeal similar to mine.

Try to PM 'Rocky27' from the following links. He submitted a successful ParkWatch POPLA appeal. He didn't show the appeal on the forum, but he may be prepared to PM you a copy back.

https://forums.moneysavingexpert.com/discussion/5482186

http://forums.moneysavingexpert.com/showpost.php?p=71031427&postcount=2249

Coupon-mad

Kshah786 wrote: »

Hi I have used the search part. But I can't find park watch popla appeal. I cant seem to find a popla appeal similar to mine.

I showed you a similar one and told you exactly which 4 points to use as your appeal! What more do you need than 4 template POPLA appeal points where your only tiny job is to change the name to ParkWatch and edit anything not right for your case...?

Umkomaas has also kindly found a ParkWatch thread. Stop looking for them. You DO NOT need to find a ParkWatch POPLA appeal.

Kshah786

hi all. this is my appeal letter.

could you have a quick look please.

Dear POPLA Adjudicator,

I am the registered keeper of vehicle NX09 YDH and am appealing a parking charge from Park Watch on the following points:


1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

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. 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


1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

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.


2. 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.''


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' 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


4. 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:

WEB LINK as per template

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:

WEB LINK as per template

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:

WEB LINK as per template

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

WEB LINK as per template

''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:

WEB LINK as per template

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

WEB LINK as per template

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

Kshah786

also to add. im thinking of submitting my appeal around 16 november which is 3 weeks or so from the appeal refusal date from parkwatch

Umkomaas

A quick glance-over. Looks OK.

Rather than expect an Assessor to have to follow web links, where you can, it would be better to embed images within the appeal. They break up the wall of text and makes it easier for the Assessor to glance at the image. Remember, you want the Assessor on your side, make it easy for them to be so.

Convert to a .pdf file, select the 'Other' reason for submission, attach the file, take a screen shot immediately before pressing the 'Submit' button.

Coupon-mad

Nice use of the relevant templates which do seem to match your case. A lack of NTK should/will be fatal to this charge but point #2 is new-ish for this forum, and IMHO vital, to show POPLA why it's fatal for the parking firm, why they can't tell a keeper appellant to pay anyway, just because you appealed at the NTD stage.

I would cross out the bit shown:

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' [STRIKE]or 'genuine resident'[/STRIKE] exemptions

I agree with Umkomaas in that I always embed photos within the word document to 'make the appeal look appealing' and break up the wall of words to illustrate what you are saying. I almost never upload any evidence photos separately. But in your case I'm not sure you are showing any photos/don't need to? I think you are just linking info as per the template, if so then that's fine.



You could add a final appeal point but only if ParkWatch actually showed you photos of the car on yellow hatched lines (otherwise as keeper you would not know!):



5. No offer of parking made - no contract (Beavis case confirms)

In the Beavis case, the bottom line was that ParkingEye had offered a licence to park which Mr Beavis had accepted - i.e. consideration flowed both ways and the elements of a contract existed.

Here, I have been shown photos of the car at a retail shop, temporarily stopped on hatched lines. At most Supermarkets, hatched lines beside the store mark out a 'drop off/pick up' area where drivers are entitled to either unload or load purchases, or drop off passengers or even go instore to pick up a replacement item or bulky/large purchase, already paid for and waiting for them at the CS desk. All such activity is reasonably allowed at Supermarkets on hatched lines. These markings are not an indicator of 'no stopping at all' in retail locations.

There is no evidence that the driver was involved in anything more than the above exempt activity, authorised by Tesco under their own leasehold rights. Tesco or the freeholder might have had a case to pursue a driver under the tort of trespass (if they felt the driver was trespassing) but the Beavis case confirmed that a third party parking company with no title in the land has no such right, and in any event, trespass is not being argued.

ParkWatch are trying to tell POPLA that they have 'prohibited' parking on the one hand, yet are simultaneously charging drivers £100 for parking there. That is impossible and certainly not a valid contractual agreement. There is no evidence that ParkWatch actually 'made an offer' for drivers to park there.

No offer or agreement = no contract. This is confirmed in PARKINGEYE LTD V BEAVIS [2015] UKSC 67, where it was held:

Lord Mance at 190: Mr Beavis… was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract.''

''But it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.’’

Kshah786

With regards to the Weblinks i have just copied bits from another template. so i havent actually got the weblinks. i will try and get them.
As the photos are concerned i was not sent any photos nor did i take any pictures.
Also by photos do you mean screenshots of the WEBlink or photos of the signages etc
Can i leave this as it is and just change the bits you mentioned.

Coupon-mad

With regards to the Weblinks i have just copied bits from another template. so i havent actually got the weblinks. i will try and get them.

You have got the weblinks - the template originals with the actual weblinks are linked in the NEWBIES thread post #3. Click on those weblinks from the original templates I wrote in September.

As you have no photos there is nothing to embed in the document, no worries, just remove the bit about 'residents' that I crossed out earlier.

As the photos are concerned i was not sent any photos nor did i take any pictures.

So they've sent no evidence to you so far, of where the car was parked? If so then I would still try to attack the fact they made no offer but amend the suggested point #5 to this instead:



5. No offer of parking made - no contract (Beavis case confirms)

In the Beavis case, the bottom line was that ParkingEye had offered a licence to park which Mr Beavis had accepted - i.e. consideration flowed both ways and the elements of a contract existed.

Here, the driver states that the car was at a retail shop, not parked but just very briefly stopped on hatched lines, as is allowed by the Store (Tesco are believed to have leasehold title in the land).

I cannot shed any more light on the positioning of the car nor yet judge whether there was a 'no parking' sign at the lines because this operator has failed to send me any photos whatsoever to justify their position when rejecting my appeal. When an operator responds to an appeal from a registered keeper, at the very least one would expect to be shown the basics of the contract and contravention they are alleging - e.g. photos of where the car was parked and the wording on the signs (if there was one at the place parked).

I have seen nothing by way of evidence/photos (and as regards the signs, I had to go and look at them in order to write this appeal). I reserve the right to comment further on this point if evidence is produced.

At Supermarkets, hatched lines beside the store mark out a 'drop off/pick up' area where drivers are entitled to either unload or load purchases, or drop off passengers or even go instore to pick up a replacement item or bulky/large purchase, already paid for and waiting for them at the CS desk. All such activity is reasonably allowed at Supermarkets on hatched lines. These markings are not an indicator of 'no stopping at all' in retail locations.

There is no evidence that the driver was involved in anything more than the above exempt activity, authorised by Tesco under their own leasehold rights. Tesco or the freeholder might have had a case to pursue a driver under the tort of trespass (if they felt the driver was trespassing) but the Beavis case confirmed that a third party parking company with no title in the land has no such right, and in any event, trespass is not being argued.

As I understand it, despite the lack of any photos or evidence, I think that ParkWatch are trying to tell POPLA that they have 'prohibited' parking on the one hand, yet are simultaneously charging drivers £100 for parking there. That is impossible and certainly not a valid contractual 'agreement'. A person cannot agree to pay to be allowed to do something that is forbidden (not offered) and there is no legitimate interest from the landowner to support what is clearly a punitive charge. There is no evidence that ParkWatch actually 'made an offer' for drivers to park there.

No offer or agreement = no contract. This is confirmed in PARKINGEYE LTD V BEAVIS [2015] UKSC 67, where it was held:

Lord Mance at 190: ''Mr Beavis… was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract.''

and the Supreme Court held: ''But it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.’’