Notice to keeper 1 month after the event...

Anagram

I am about to start my POPLA appeal, should I click on the "Other grounds for appeal" section?

Redx

only when you have completed the appeal (not started it) and gained approval for submission

ie:- do it in word or notepad, get it checked , then save it as a pdf and upload it after clicking OTHER on their site, ataching it to the bin icon

and put SEE ATTACHED APPEAL in the comments box

Anagram

This is what I have cobbled together for my POPLA appeal (below); does this look ok?


POPLA verification code xxxxxxxxxx
Vehicle Registration number: xxxx xxx

I received a PCN from Britannia Parking on Tuesday 6th December 2016 (attached) dated 2nd December 2016 for a parking offence that they allege was committed on 2nd November 2016. The PCN stated that:

“As we do not know the drivers name or current address, and if you were not the driver of the vehicle at the time, you should tell us the name and the current postal address of the driver and pass this notice to them for payment.”

I appealed to Britannia on the basis that I am not required to reveal the identity of the driver and as they had contacted me, as keeper, more than 14 days after the alleged offence, as required by POFA2012, they cannot transfer liability on to me. In relation to the specifics of my appeal Britannia rejected it on the basis that:

“It is not a requirement for the Parking Charge Notices issued to you, that we must notify you within 14 days. This only applies if we refer to the Keeper Liability provisions in Schedule 4 of POFA 2012, when we issue a Parking Charge Notice. As we did not, we have 35 days to notify you of the Parking Charge Notice.

Britannia Parking have made no assumptions as to the identity of the driver, we have written to you as the vehicle keeper to inform you of any outstanding contraventions on your vehicle. Should you wish to transfer liability, please provide the driver's details and we will amend our records. Please be aware the identity of the driver does not affect the validity of a PCN.

You have now reached the end of our internal appeals procedure.”

The full response is attached.

Their response is of course legally incorrect as if they are note relying on Schedule 4 of POFA2012 then they can only pursue the driver of the vehicle, whose identity they have already acknowledged that they do not know. As Britannia acknowledge that they are not using the Keeper Liability provisions under Schedule 4 of POFA2012 and do not know the identity of the driver then they have no grounds to transfer the liability for the PCN on to me as keeper of the vehicle. As I am under no obligation to and indeed have no intention of disclosing the identity of the driver then I have no case to answer and the PCN should be cancelled.

Anagram

The deadline for my appeal is Monday by the way so any thoughts on what I have written would be appreciated.

Anagram

Any thoughts on this guys? Just after a view from one of the experts before I send it in to POPLA...

catfunt

It's a bit sparse and needs a proper structure.
There are several points you should be appealing on as a matter of course.

Have a look at the POPLA Decisions thread at the top of this forum.
THis should link you to some successful appeals posted by others. Have a look at recent cases (2016), then put your new draft up for critique.

Umkomaas

There are a number of template appeal points contained/linked in the NEWBIES FAQ sticky, post #3. You should be using all (most) of those as a minimum. They are winning points and are ready to copy and paste.

Make the appeal detailed and long enough and the chances are that the PPC will just give up as there's too much for them to tackle in a forum-assisted appeal. Many of them are conceding when faced with a lengthy appeal.

Your draft above has the key issue for POPLA to cancel this, but they are not predictable, so a single appeal point strategy is risky. Give them the full works and this should see you easily over the winning line.

Coupon-mad

Anagram wrote: »

This is what I have cobbled together for my POPLA appeal (below); does this look ok?


POPLA verification code xxxxxxxxxx
Vehicle Registration number: xxxx xxx

I received a PCN from Britannia Parking on Tuesday 6th December 2016 (attached) dated 2nd December 2016 for a parking offence that they allege was committed on 2nd November 2016. The PCN stated that:

“As we do not know the drivers name or current address, and if you were not the driver of the vehicle at the time, you should tell us the name and the current postal address of the driver and pass this notice to them for payment.”

I appealed to Britannia on the basis that I am not required to reveal the identity of the driver and as they had contacted me, as keeper, more than 14 days after the alleged offence, as required by POFA2012, they cannot transfer liability on to me. In relation to the specifics of my appeal Britannia rejected it on the basis that:

“It is not a requirement for the Parking Charge Notices issued to you, that we must notify you within 14 days. This only applies if we refer to the Keeper Liability provisions in Schedule 4 of POFA 2012, when we issue a Parking Charge Notice. As we did not, we have 35 days to notify you of the Parking Charge Notice.

Britannia Parking have made no assumptions as to the identity of the driver, we have written to you as the vehicle keeper to inform you of any outstanding contraventions on your vehicle. Should you wish to transfer liability, please provide the driver's details and we will amend our records. Please be aware the identity of the driver does not affect the validity of a PCN.

You have now reached the end of our internal appeals procedure.”

The full response is attached.

Their response is of course legally incorrect as if they are note relying on Schedule 4 of POFA2012 then they can only pursue the driver of the vehicle, whose identity they have already acknowledged that they do not know. As Britannia acknowledge that they are not using the Keeper Liability provisions under Schedule 4 of POFA2012 and do not know the identity of the driver then they have no grounds to transfer the liability for the PCN on to me as keeper of the vehicle. As I am under no obligation to and indeed have no intention of disclosing the identity of the driver then I have no case to answer and the PCN should be cancelled.

There are already template appeal points that cover this and more. Never rely on just one appeal point - i.e. you have nothing about 'unclear signage', nothing about 'landowner authority', you have not said how the NTK fails the POFA Schedule 4 - and you can also use the template point about 'the appellant not being identified as the individual liable'.

Chuck them all in and Britannia will take one look and concede.

Anagram

Does this cover the bases?


POPLA verification code xxxxxxxxxx
Vehicle Registration number: xxxx xxx

I received a PCN from Britannia Parking on Tuesday 6th December 2016 which I would like to appeal. The PCN was dated 2nd December 2016 for a parking offence that they allege was committed on 2nd November 2016.

The PCN stated that:

“As we do not know the drivers name or current address, and if you were not the driver of the vehicle at the time, you should tell us the name and the current postal address of the driver and pass this notice to them for payment.”

I appealed to Britannia on the basis that I am not required to reveal the identity of the driver and as they had not contacted me, as keeper, within 14 days of the alleged offence, as required by POFA2012, they cannot transfer liability to me.

In relation to the specifics of my appeal Britannia rejected it on the basis that:

“It is not a requirement for the Parking Charge Notices issued to you, that we must notify you within 14 days. This only applies if we refer to the Keeper Liability provisions in Schedule 4 of POFA 2012, when we issue a Parking Charge Notice. As we did not, we have 35 days to notify you of the Parking Charge Notice.

Britannia Parking have made no assumptions as to the identity of the driver, we have written to you as the vehicle keeper to inform you of any outstanding contraventions on your vehicle. Should you wish to transfer liability, please provide the driver's details and we will amend our records.
Please be aware the identity of the driver does not affect the validity of a PCN.

You have now reached the end of our internal appeals procedure.”

I contend however that 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.

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.''

In addition to my primary point above I would point out the following:

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 there 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.

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.

Given the above I request that the PCN issued to me by Britannia be cancelled.

Anagram

What do you reckon guys? Ok to submit this to POPLA?