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UKPC Popla Appeal Help

ZimmZimm Forumite
3 Posts
MoneySaving Newbie
Hi All

Just a quick background, I'm appealing on behalf of my Mum as she parked in error across two bays in a retail car park and found a Windscreen PCN. She didn't want to pay the fine so I promptly searched the web and came across the Newbies thread on here.

The photos on the UKPC website were a bit damning but I was determined not to give in and appeal appropriately. I submitted the appeal using the template on the Newbies thread after 25 days and got a rejection letter before day 56 (I'm confident this doesn't constitute a NTK). It's now around day 75 and, having ignored the rejection letter, have received a second letter with the POPLA code.

I have drafted a POPLA appeal letter below based on 2016 examples from this thread. I only have two points as I wasn't sure what else I could include. Reason being is that they have stated "We have investigated your appeal based on the information you have submitted and confirm that this Parking Charge was correctly issued because there are sufficient signs at XXXX Car Park warning drivers that there is no parking outside of designated bays, this includes parking across two bays." Should I still include a paragraph about insufficient signage and another about how the charge is not a genuine pre-estimate of loss?

POPLA Appeal Letter

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from UKPC.

1. The Notice to Keeper is not compliant with the POFA 2012 – no keeper liability.
2. No standing or authority to pursue charges nor form contracts with drivers

1. The Notice to Keeper is not compliant with the POFA 2012 – no keeper liability.
To date I have not been issued a Notice to Keeper (NTK) by UKPC. As a notice to driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

The alleged infringement occurred on xx/xx/2016 and from my understanding the NTK was required to reach me by xx/xx/2016. As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore, there can be no keeper liability.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.

2. No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, UKPC must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put UKPC to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between UKPC 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 to UKPC.

Section 7 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. Section 7.1 states:

“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”.

Section 7.3 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 do not believe that this operator's mere site agreement as a contractor issuing PCNs and letters 'on behalf of' a landowner gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay UKPC. UKPC have no standing to enforce 'parking charges' or penalties of any description in any court.

I put UKPC to strict proof of compliance with all of the above requirements.

Replies

  • Coupon-madCoupon-mad
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    I only have two points as I wasn't sure what else I could include.
    Have a look at the end of 'POPLA Decisions' and work backwards and find the template POPLA appeal points I posted there two weeks ago. You can certainly use the 'unclear signs' one verbatim, and the 'individual not being shown to be the driver liable' one, exactly as written. Oh, and the one about 'genuine customer exemption clause' too.

    All of them are posted in full, towards the end of 'POPLA Decisions' - the top thread on this board
    Should I still include a paragraph about insufficient signage
    Yes.
    and another about how the charge is not a genuine pre-estimate of loss?
    No, that no longer has legs.

    HTH
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • ZimmZimm Forumite
    3 Posts
    MoneySaving Newbie
    That's a huge help. I wasn't sure about the 'Genuine Customer Exemption' as we don't have receipts but I think the appeal is weighty enough anyway. Given that the NTK has not been sent my fingers are crossed on that point being enough!

    The full letter is below for reference and I'll be submitting it in the next few days.

    POPLA Appeal Letter

    Dear POPLA Adjudicator,

    I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from UKPC 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.
  • Coupon-madCoupon-mad
    105.7K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
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    Go for it, I predict a win as no NTK and no proof of driver has been put in POPLA's face.

    Save this as a PDF and attach it by uploading it under 'OTHER' on the POPLA website. Nothing else except you do have to add your details.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • edited 31 October 2016 at 7:32PM
    ZimmZimm Forumite
    3 Posts
    MoneySaving Newbie
    edited 31 October 2016 at 7:32PM
    Received the good news from POPLA. It was due to their failure to send a NTK.

    Thank you for submitting your parking charge Appeal to POPLA.

    An Appeal has been opened with the reference xxxxxxxxxxx.

    UK Parking Control Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

    Yours sincerely

    POPLA Team



    And a very apologetic response from UKPC, they almost sound sincere...

    Dear xxxx,

    Thank you for your recent correspondence in relation to the above Parking Charge. We understand your frustration and appreciate the inconvenience this has caused you. It is not our intention to cause undue worry and frustration when enforcing our clients parking regulations.

    We have investigated the appeal based on the information submitted by yourself and can confirm in this instance that the Parking Charge has been cancelled.

    We strive to deliver a high quality service that enhances the existing quality standards insisted upon by our client and ensure our Wardens are stringently trained to meet these expected standards.
    On behalf of ourselves and our client we apologise for any inconvenience.

    Yours faithfully,

    Appeals Department
    UK Parking Control Limited
  • Ralph-yRalph-y Forumite
    4.5K Posts
    Ninth Anniversary 1,000 Posts Name Dropper Photogenic
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    well done .... :j

    would you now kindly consider the below ....



    This is a campaign of asking people to keep sending Theresa May actual hard copies of the trash they've been deluged with. Let her advisers' desks overflow with annoying paperwork re PPCs.

    No emails, all letters from genuine people pouring their hearts out. Write to your MP as well as Mrs May:

    https://bmpa.zendesk.com/hc/en-us/articles/211923909-Why-not-write-to-your-MP

    The more the better, write it yourself if you are able and enclose copies of the threatograms and rubbish thrown at you.

    Do not do this by email - make your paperwork land with a thump on desks, just like it all landed in a very unwelcome way on your doormat.

    Apparently the DCLG are looking to make an announcement before the year end so let's make MP's and Mrs May aware that action needs to be strong. You can be sure that the BPA and IPC suits are lobbying Parliament and meeting their friends in suits.

    So let the consumers' voices be heard.



    thanks

    Ralph:cool:
  • Coupon-madCoupon-mad
    105.7K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
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    Hahaha, they've sent a grovelling apology as if the person who issued the PCN was at fault. Yet they had initially rejected the first appeal, as always, saying the PCN was 'properly issued'.

    And they've backed down against a complete 'forum template' POPLA appeal with nothing specifically about the issuing of the PCN in it at all!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • Hi

    would it be possible to put the pdf or copy of the contact without your details - so that I may copy and paste the letter as i have had a letter from UKPC claiming that I owe them for parking charges..

    letters keep on coming..:T
    Roberto ...:beer::j
  • Hi - this is a great letter, thanks for spending the time to share this. :)

    I wondered if you have the web links specified in your template please as id like to send a similar appeal this week?
  • Coupon-madCoupon-mad
    105.7K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
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    Hi - this is a great letter, thanks for spending the time to share this. :)

    I wondered if you have the web links specified in your template please as id like to send a similar appeal this week?

    Yes, he's copied the pre-written POPLA templates from post #3 of the NEWBIES thread. Top of this forum, one click away to see the top threads (see my signature, tells you the words to click on at the top of this very page).

    You need to find the templates, build your own POPLA appeal having read the NEWBIES thread post #3, and then START A NEW THREAD OF YOUR OWN.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
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  • dmo84dmo84 Forumite
    82 Posts
    This was the first stage appeal,

    Unfortunately the driver appealed without reading websites,

    The appeal was something along the lines of



    "Hi,

    X recently parked for a few minutes at a retail park, in a space which X believed was a parking space,
    there is brickwork around the bay which defines a zone, so said driver identified this as a parking bay as there was a marked bay, with no other indication not to park there, they therefore thought it was a parking space, they had no indication it was not.


    It was not clear enough to the driver that this was a non parking space, as the zone draws the attention that it is suitable to park. The driver was in the shop for around a minute or two before they could see the parking attendant at the car, at which point, they rushed out and apologized and mentioned that it was not clear enough that it was not a parking space, incorrectly identifying it as a non-parking space because of the surroundings and markings had not been clear enough, if they had known they would not have parked there.

    Please see images attached

    I would be grateful if this appeal could be processed as there was no clear indication on signs, later investigations showed the sign saying park in marked bay, however the car itself was parked in a marked bay during the very short time.


    Thanks


    XXXXX
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