Train Station - POPLA stage

debroxton

OK, I've tried, but perhaps I am not searching in the right way, as I didn't find loads. Not sure whether or not to put the bit in about notifying the driver, as the 56 day mark hasn't been reached yet. Plus, I still have no ideas as to why the parking ticket wasn't valid....
Regards
Debbie

My car was issued with a penalty notice on ....... but I believe it was unfairly and/or unlawfully issued. I declined the company’s invitation to name the driver, which is not required of me as the keeper of the vehicle. I will not be paying the demand for payment for the following reasons:

The penalty notice states that my car was parked without displaying a valid payment. I emailed Indigo on ........... asking why they believe that the ticket, clearly displayed in my car, was not valid but have not received a reply, which makes this appeal difficult to address.

1. The location in question is not 'relevant land' as defined by the Protection of Freedoms Act 2012, as it is owned by Govia Thameslink railway and is subject to the Railway Byelaws. The Operator is not the owner of the land in question, and therefore does not provide any consideration which may form a contract with motorists. Any consideration, in the form of a parking space, is provided by the landowner, in this case Govia Thameslink Rail, and any liquidated damages for breach of contract would be owed to the landowner, not to the Operator. The Operator has provided no details showing their authority to exercise parking controls on railway land, nor provided contact details at Govia Thameslink Rail to whom I can direct a complaint. Further, the Operator has not provided an unredacted copy of their contract with the landowner as required under Section 7 of the BPA code of practice. The operator has omitted clear information about the process for complaints including a geographical address of the landowner and/or

2. The alleged contravention did not occur
The vehicle was displaying a valid parking ticket. Please see attached evidence, as proof of the claim, and/or

3. If it is alleged that the ticket was not ‘affixed’ to the windscreen, I submit that this is an unfair term of the alleged contract and that the ticket was clearly displayed and/or

4. If it is alleged that the ticket was paid for from the wrong machine. The car park in question does not have any other machines, there is a sign asking ‘have you paid and displayed’ outside the entrance to the ticket office. This is where the ticket was purchased from as instructed. There was insufficient signage to say the ticket should be paid for elsewhere or in a different way and/or


5. If it is alleged that insufficient money was paid. There was insufficient signage to show how much the parking charge was. The machine in question had a light missing and was very difficult to read. This means no contract can be formed with the landowner and all tickets are issued illegally. Please see attached evidence. Neither have I been shown the amount of parking charge alleged to be outstanding and/or

6. 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 and/or

7. 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:


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:



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:



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

[
''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:



''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:


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 and/or

8. 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.'' And/or

9. 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 and/or

10. The Operator has affixed a “Penalty Notice” to the vehicle which is a misrepresentation of authority under clause 14.2 of BPA code of practice, with whom the Operator is affiliated.

It appears this has been done in order to intimidate the general public into paying a legal penalty such as a traffic warden would issue, rather than a Parking Charge that the operator is able to issue. The term “Penalty Notice” is used with prominence on the issued paperwork and/or

11. I believe that the signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. The unremarkable and obscure signs are blocked by other vehicles parked in bays directly in front of them, and cannot be read by drivers. The photograph submitted by the Operator showing terms and conditions on site is illegible, and cannot be accepted to form the basis of an offer resulting in agreed contract and/or


12. The penalty notice states ‘By entering the car park you have agreed and are contracted to be legally bound by those terms and conditions’. As the owner of the vehicle which entered the car park, it is denied that I entered into a contract with either Indigo or the rail company.
13. Under Section 14 (4) (i) of the Railway Byelaws, it states that “In England and Wales: The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area”. I consider this to be an unfair contract term, which I, as the keeper of the vehicle, haven’t agreed to.

pappa_golf

STOP , look at the updated POPLa page https://popla.co.uk/

POPLA has taken the decision to consider the cases previously adjourned due to Byelaws. We initially placed these appeals on hold after receiving complaints that we did not have the remit to consider if a Byelaw had been breached. After considering our position, we feel it is important to offer an appeal service to motorists so that they can have an independent assessment made. As such, we will look at the appeals we have placed on hold since September 2016. As of 5 January 2017, we had approximately 1,300 appeals on hold. If you have an appeal on hold for this issue, we would ask for your patience while we work through these. We would remind you that while an appeal is with POPLA, the parking operator is unable to pursue payment.

the situation regarding bylaws has not been settled , or the UK public are not being told the answer

the question ask of POPLa back in September was not " to consider if a Byelaw had been breached."

the question ased was "have POPLa the athority to assess claims that are on bylaw land"


roll foward , thec reply can only be

1: you have breached a bylaw
2: you have not breached a bylaw

win , win for the consumer , as the law stands (pofa2012) for land that comes under bylaws only the owner can bring a claim , in magistrates court

so POPLa either say , breached bylaw (no follow on ,,, just those words) or no you have not breached a bylaw ,

gonna be fun innit?

debroxton

Ooh plus, when I appealed to Indigo they stated this ".... issuing the above Parking Charge Notice, and having considered your reasons for appeal, our decision is to uphold the Penalty Notice." I'm sure that I've read somewhere that these are two different things..

The_Deep

Phew, that is quite a tome, all you need to say is "no keeper liability, land covered by by-laws". See Arkell v Pressdram.

pappa_golf

indigo tell lies , they try to mix bylaw cases with private parking enforcement , as the lsand comes under bylaws , any charges must be brought by the TOC , ands in a magistrates court and within 6 mths , indigo cannot pass your details to a non BPA member

it is a bluff "pay us £100 or we will tell TOC your details and they will start court action"

ping pong and delays are good fun ,

yet to see an indigo / other PPC on bylaw land try to bring a case in the county court , think VCS (JLA) who dish out 1000s per week at liverpool airport , but are frighteneed to start a case at CC

pappa_golf

The_Deep wrote: »

Phew, that is quite a tome, all you need to say is "no keeper liability, land covered by by-laws". See Arkell v Pressdram.

nope , let POPLa decide if thec OP has broken a bylaw or not , thats it , simple bylaw or not! , if they say yes , nice one (no CC case) if they say no , nice one

debroxton

Okay, will do Many thanks everyone for your advice, I'll keep you advised of what happens. Debbie

debroxton

Hi All

I have now received two things

1. A notice to keeper, and
2. A 'case file' from Indigo, they haven't really replied to my POPLA appeal, just a standard, didn't display a valid parking ticket.

Any help on what to do next would be appreciated.

Regards
Debbie

Coupon-mad

Point out in comments to POPLA that the NTK was served too late, that they have not shown a keeper appellant can be liable under byelaws and haven't answered the points in your appeal.

The_Deep

The more questions you ask, the more objections you raise, the more it costs them, so keep the ball in play.


The only way they are going to get a penny is if a magistrate finds you guilty of a criminal offence and the TOC bungs the PPC a percentage.


However, the TOC get none of the fine anyway so that is not very likely.