Advice on Parking Charge Notice

FriendlyFred

Dear all,

Forgive me if I've posted in the wrong place or I've overlooked forum etiquette. I have tried to read much of the information offered here, including the Newbies guide, and I've been impressed and overwhelmed at the general goodwill. However, there's so much information I'm completely out of my depth, I wonder if anyone is kind enough to provide advice specific to my situation?

My wife was completely surprised to receive a PCN just before Christmas (not being aware of this forum as a fantastic resource) and being in shock and aggrievance that a company could 'invoice' her for an alleged breach of contract she wasn't even aware of, we sent off a hurried challenge. My wife has since received a response to that letter which includes lots of legal stuff that neither of us can begin to comprehend (I include redacted copies at the end). I'm seeking advice on whether she has a case to take to POPLA or whether we should cut any losses, admit we're been 'fleeced', pay-up, and stop the sleepless nights.

To provide some background, one evening before Christmas, the driver of my wife's vehicle attended a celebration meal at a restaurant. The car was parked in a dark, practically empty car-park just behind a shopping precinct and outside of business hours. That car-park had been used by the driver on a few rare occasions over the last 15 years but had no idea that it had been taken over by a PPC with ANPR technology or that restrictions to the 'free' car-park were now in place. Ironically, had the driver known there were any restrictions they could have parked merely 100 yards away in a genuinely free car-park with no such restriction.

The NTK received by my wife, indicates that free parking at the location is restricted to 2 hours. My wife's car was allegedly shown on APNR as entering and leaving the car-park 2 hours and 55 minutes apart. Although I could not visit the location over the Christmas period as I was away, I have since visited the site to look for parking restriction notices - the driver is adamant none were visible at the time.

To confirm the driver's recollection, I found signage is not visible at night. None of the signs are illuminated, nor are they reflective. I attach photographs that clearly show other Parking signs are visible, as are proprietors parking signs. None of the PPC's signs are clearly visible at night. As such I think they might be in breech of the BPA's guidelines. It is not obvious to the public that parking restrictions are in force. From the BPA code of conduct (Appendix .

"Signs should be readable and understandable at all times,
including during the hours of darkness or at dusk if and when
parking enforcement activity takes place at those times. This
can be achieved in a variety of ways such as by direct lighting or
by using the lighting for the parking area. If the sign itself is not
directly or indirectly lit, we suggest that it should be made of a
retro-reflective material similar to that used on public roads and
described in the Traffic Signs Manual. Dark-coloured areas do
not need to be reflective. "

I attach photographs of the Entrance to the car-park (and ring the PPCs signage), and the approach to the parking spaces (and ring the PPCs signage) and finally an indication of where I was parked (the car with registration blacked out) along with the nearest restriction signs.

Entrance to Car-park ( left turn off road down between brick walled buildings)
hxxp://i1146.photobucket.com/albums/o529/FriendlyFred7/entrance2_zpshgjbt7wk.jpg

Approach to parking spaces: (other signs visible but not PPCs)
hxxp://i1146.photobucket.com/albums/o529/FriendlyFred7/approach2_zps223ryyhu.jpg

Where my wife's car was parked. In the distance the light at the back of the car-park is the nearest PPC sign (still not reflective, illuminated or visible unless you know what you are looking for).
hxxp://i1146.photobucket.com/albums/o529/FriendlyFred7/parked2_zpsodknx6h4.jpg

If we pay in the next 8 days or so a discount will be applied, but we'd still feel morally cheated. So I wanted to determine if, in the opinion of more experienced members of this forum, our objections are reasonable, valid, and would have any chance of a successful POPLA appeal?

I note that the PPC did not address our concerns about the lack of illuminated or visible signs from the original challenge, but chose to address the 'unfair charge' aspect. Is that an indication they also believe it is inadequate?

As you can see from the redacted documents I've added to Photobucket. The original response to the PPC was taken as an appeal, despite being worded as a challenge. The PPC has provided a POPLA code, so should we now take the complaint to POPLA including new photographic evidence gathered? or should that evidence be sent to the PPC as a genuine appeal rather than the original challenge that was taken as an appeal? Should we ask the PPC to prove their contract with the land-owner demonstrating that they can exact charges outside of business hours?

Anyway that's the position we're in, any advice is profoundly appreciated. Thank you.

PCN: hxxp://i1146.photobucket.com/albums/o529/FriendlyFred7/Original_PCN1_zpsumrie4qd.jpg

Challenge: hxxp://i1146.photobucket.com/albums/o529/FriendlyFred7/Challenge_zpsmaiu0m6x.jpg

PPC response: hxxp://i1146.photobucket.com/albums/o529/FriendlyFred7/Appeal_PCN_zps9ls8paar.jpg

Redx

yes you should include all arguments that are relevant, including

NO LANDOWNER CONTRACT
POOR OR INADEQUATE SIGNAGE
POOR;Y ILLUMINATED SIGNAGE
BPA CoP failures
NTK failures
POFA2012 failures

and anything else , you now deal with POPLA , not the ppc , so dont contact the PPC , the NEWBIES sticky thread helps you to draft your POPLA appeal , so read the POPLA section and the links and exapmples etc

presumably you should have given the retailer your VRM and extended the time allowed ? did they tell you this ?

why have you not contacted the landholder or retailer and demanded a cancellation ?

lastly

WHICH PPC WAS IT ???

FriendlyFred

Thanks for the reply.

I don't know who the retailer/land-owner is. It's a tiny little precinct off a main-road with a small collection of stores, in an area I'm not really familiar with. The stores I presume would have been closed at the time of parking. If necessary I can arrange to visit the site again to determine what stores may be trading there. I should have done it when I revisited to take the pics, but I wasn't thinking straight, and it's a bit of a trek from where I live.

Also I don't think there is a scheme as elaborate as VRM entry in place. i.e. you don't have to frequent the store and put in registration details to qualify for free-parking. It seems to be based on entry/exit time only.

The PPC is Britannia Parking.

Thanks.

FriendlyFred

I took an extra visit to some of those stores today, in the hope I could find a store manager with a morale conscience that could cancel the PCN. Unfortunately all gave the same answer - their chain of stores rents the shop-floor, they don't deal with the landlord, I need to speak to head-office (which I'll attempt anyway).

I'm also considering the POPLA route because I feel very strongly that the driver was not made aware of any restrictions and could not have entered into any form of contract. In my opinion, the signs are completely inadequate at night, they are not lit, nor are they reflective (indeed the driver did not see them or they would not have parked there).

Does anyone have any experience in judging whether the photographs I provided (see attached photographic evidence in the thread) show a compelling case for inadequate night signage?

FriendlyFred

Although the registered keeper is my wife. We have not named the driver. The PPC continue to send correspondence to my wife (the registered keeper). Does that matter? It is important who deals with the POPLA appeal even?

I'm concerned that should it reach court, my wife would be unable/unwilling to defend anything so I would prefer the PPC to deal with me, not her.

Umkomaas

You can deal with everything on behalf of your wife - even at court, although she would need to be there with you. Chances of this going to court - virtually nil.

http://www.bmpa.eu/companydata/Britannia_Parking_Group.html

You do everything in your wife's name as registered keeper because PoFA provides protection for the keeper. Expose the driver's identity and you throw away one of your Ace cards. You need to edit any post in here that so identifies who the driver was.

You can beat this at POPLA, so any concerns about court are, at the very least, immensely premature. Sleep easy.

Coupon-mad

Although the registered keeper is my wife. I was driving, and will also be dealing with the appeals procedure and any fallout.

No, please don't.

And in any case the POPLA code is not yours, it is your wife's. Do it in her name as keeper. that NTK is NOT one that can hold a keeper liable so do not throw away the SLAM DUNK winning first appeal point that your wife has (but you would not):

http://s1146.photobucket.com/user/FriendlyFred7/media/Original_PCN1_zpsumrie4qd.jpg.html

You can see there is nothing from para 9 of Sch4 of the POFA in that wording. Your wife WILL win at POPLA, use our template POPLA appeal points from post #3 of the NEWBIES thread, set out in a long POPLA appeal underneath point #1, which will be about 'no keeper liability'.

FriendlyFred

Thank you so much to all for the kind advice.

I've compiled a POPLA appeal for my specific case, taking some of the template wording where appropriate and applicable.

Before I submit this, I would appreciate any wisdom and guidance, and perhaps a check-over to ensure that I'm not writing anything stupid that would hamper the appeal!

:0)

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Re: POPLA code:

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v Brit

Dear Sir/Madam,

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I was NOT the driver.
I contend that I am not liable for this parking charge on the basis of the below points:

1) The signs in this car park, at the time of the alleged contravention during the hours of darkness, were not visible. The inconspicuous signs were not illuminated, prominent, clear, or legible.

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

3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

4) The BPA Code of Practice was not met with regard to a ANPR controlled car-park


1) The signs in this car park, at the time of the alleged contravention during the hours of darkness, were not visible. The inconspicuous signs were not illuminated, prominent, clear, or legible.

On entering the car-park, the driver of the vehicle was not made aware of any contract or parking agreement. There were no barriers, no parking ticket machines, no visible indications, or physical impingement whatsoever of any parking restriction or agreement of contract. Upon visiting the site of the alleged contravention I found that the car-park itself was extremely poorly lit and none of signs placed by the operator were illuminated, reflective, or conspicuous.

Indeed, in the darkness, I had to search with pre-knowledge and intent to discover any signage whatsoever that indicated there would be an agreement or that any restrictions would apply should one choose to patronise the site.
In stark contrast to the operator's signs, entrance signs to the car-park, and signs throughout the car-park placed by proprietor businesses, were large, clear, illuminated and prominent.

I include photographic evidence of the lack of conspicuous signage. These photographs were taken from a number of different locations at the entrance to, and within the car-park, as well as indicating where cars would likely be parked with respect to the nearest signs.

hxxp://i1146.photobucket.com/albums/o529/FriendlyFred7/entrance2_zpshgjbt7wk.jpg
Photograph 1 - shows the entrance to the car-park as seen from pavement next to the main thoroughfare. A left-turn off the main road where the signs says “Customer Car Park” takes you into the car-park. As the driver of a vehicle travelling along the main road, this sign is the only sign that is visible within the “dark-alley” or entrance to the car-park. That is in breach of the BPA code of practice 2012, section 18.2. In contract to the large, welcoming and reflective car-park signs, the operator’s sign is barely detectable; and certainly not legible, even with the aid of the camera flash to illuminate the area.

hxxp://i1146.photobucket.com/albums/o529/FriendlyFred7/approach2_zps223ryyhu.jpg
Photograph 2 – shows the mini-roundabout at the end of the car-park entrance - off which parking is located mainly to the left. The driver of the vehicle would have approached this roundabout and turned left into the larger parking area. From this area there is no reason to approach the opposite side of the roundabout where the sign ringed in the photograph is located (I felt it necessary to ring the sign in the photographs to highlight their presence and prevent wasted time by the observer searching for them). The operator’s signage is inadequate, it cannot be reasonably observed by a patron of the car-park. Furthermore, to highlight how deficient the operator’s signage is, there are other incidental signs around the car-park which are significantly more visible; by way of illumination, and of their reflective qualities.

hxxp://i1146.photobucket.com/albums/o529/FriendlyFred7/parked2_zpsodknx6h4.jpg
Photograph 3 – this photograph shows the area in which vehicles are generally parked, typically to the left of the ‘No Entry’ sign. The nearest operator signage to this location is either far away to the right and across the roundabout as shown in photograph 2, or at the far boundary of the car-park toward which the photograph looks. The exit of the car-park from this location is to return the way of entry – it is behind, from the perspective of the photographer. There is no reason for patrons of the car-park to continue forward to the far boundary where small, obscure and non-reflective signs are located.

From this evidence the adjudicator should be able to assess just how unremarkable, inadequate, and imperceptible those signs are in the hours of darkness, and how they are in direct contravention of the BPA code of practice, specifically section 18.3 which states “Signs must be conspicuous and legible”.

For convenience I have placed a red circle around the Operator’s signage - without which it would be incredibly difficult to locate any of their small, unlit, non-reflective and inconspicuous signs.

From Appendix B of version 6 of the BPA code of practice 2012 the following guidance applies:
“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times...”

The guidance goes on to say:
“If the sign itself is not directly or indirectly lit, we suggest it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual.”

It is clear that the operator has not adhered to those guidelines.

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. It is submitted that had the driver been aware of these terms, they would have immediately left the parking area and parked at one of many unrestricted, empty, and conveniently located car-parks that exist merely 100 metres from the location at which the alleged contravention occurred.


For further grounds to this appeal I cite the following judgement; a binding case law from the Court of Appeal that supports my argument, not the operator's case:

hxxp://vvv.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.

2) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

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 me, 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.’

It is my understanding that for an operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. The Driver of the vehicle has not been identified (as confirmed in the operator’s rejection of my appeal, dated --- of

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) and the Notice to Keeper fails to comply with section 9 of PoFA 2012, specifically the following passage:

“2) The notice must – f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given – (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;”

The Notice to Keeper that was received (Parking Charge Number

---

, dated

---

of

---

) omits such information. I have included in my POPLA submission the two pages of the notice which confirms that such text is absent. The only instruction in this regard is as follows:

“Please be advised that the driver of the motor vehicle is required to pay the parking charge in full. 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 current postal address of the driver and pass this notice to them for payment.”

Evidently, the operator has withheld from me (as the registered keeper) the required details of my liabilities in the event that the driver is not identified. This might be an omission on the part of the operator or a deliberate attempt to mislead, but regardless, the Notice to Keeper fails to comply with PoFA 2012 (section 9).
As this operator has evidently failed to serve a compliant 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 elaborated.


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 BPA Code of Practice was not met with regard to a ANPR controlled car-park

The BPA Code of Practice section 20.5a states that “A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered”
I include pages from the Parking Charge Notice as evidence that the photographs provided do not comply with the Code of Practice. No time and date stamp is evident on any of the photographs provided.

Only making people aware of the fact it is an automatic number plate recognition car park in the appeal rejection letter does not comply with the Code of Practice.

Yours faithfully,

Coupon-mad

Looks good to me, she should just also add the template POPLA point that:

'the appellant has not been shown as the individual liable for the charge.'

It's one in post #3 of the NEWBIES thread. Add that and she wins.

FriendlyFred

Point added. Appeal submitted. Thank you so much.