Highview Parking, Coventry - non-compliant NTK and POPLA appeal

Eebe

Hi All

I received a PCN from Highview last November and appealed against it using the advice on here (and thank you very much to all the contributors for that advice). Highview rejected the appeal so now I am preparing the POPLA appeal.
The notice I received is non-compliant with POFA as has been mentioned in respect of Highview in many other posts and will form part of my defence, but I wondered if anyone knew why Highview go down this route? It seems to me that it would be relatively simple to make their notices compliant and then keepers like me wouldn't be able to use it. I've read lots of Highview posts but haven't come across anything that helps me understand why they operate this way.

Eebe

In my appeal I'd like to complain about the lack of signage (after all, that's why the ticket was received).
However, the actual sign itself seems reasonable to me, with the charge in the biggest font, so does that mean I can't use the signage template in the Newbies sticky? If not, is there anything else I can crib from?

Here is a copy of the sign (I hope) hxxp://tinypic.com/usermedia.php?uo=bpRy0IYlPgNPYrfPWHFPFYh4l5k2TGxc#.WH4S1blT5L8

Coupon-mad

The notice I received is non-compliant with POFA as has been mentioned in respect of Highview in many other posts and will form part of my defence, but I wondered if anyone knew why Highview go down this route?

We think these firms avoid POFA documents because they can't get their act together to get DVLA data and serve a NTK within 14 days on most of their PCNs.

Firms who do, have to have two templates (like PE do). Too much trouble/expense and expertise needed - and risky for Highview to say a keeper is liable when they can't be. DVLA can ban firms for that.

Eebe

Ok that makes sense. My notice arrived after a month.

Coupon-mad

You will need in your POPLA appeal (and these are typical ones):

- NTK not POFA compliant
- Appellant not identified as the individual liable (driver)
- Landowner authority template
- signage template (why not??!! Rude not to!).

Eebe

This is my first draft of the appeal.
I've not put much in the signage section because I think the signs are clearer here than they are in many other cases, at least in terms of how long you can park for and the charge. I'd like to include the photos and comments but appreciate I may be better off taking this all out and just putting the standard signage template in.
I'd be grateful for any comments or other advice.


Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from Highview Parking on the following grounds:


1. The signs in this car park are not prominent, clear or legible from all parking spaces or at the entrance.

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

3. 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.

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



1. The signs in this car park are not prominent, clear or legible from all parking spaces or at the entrance.

The main point of appeal is that the driver did not see any signs indicating that a charge would be payable if the visit exceeded a stated time. It was purely on this basis that the driver overstayed the allotted time by almost an hour and a half. The only people who would choose to park at the site would be customers of the retailers. The Coventry Airport Retail Park is not in a popular location where people would choose to park, then go somewhere else. Furthermore, charging has only recently been introduced at this location and there are no additional signs stating this. The driver first became aware of the issue in one of the retail stores where a sign close to the exit had been put up to let customers know there was now a limit to the amount of time that could be spent on the site before a charge would be incurred.

The BPA Code of Practice (18.2) states:
Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.
The photograph below shows the right turn that all drivers must make at the mini-roundabout into the entrance to the Coventry Airport Retail Park. There is no sign visible at the entrance.

hxxp://tinypic.com/usermedia.php?uo=bpRy0IYlPgOJlzOQiYLMb4h4l5k2TGxc#.WH44PrlT5L8


This photograph shows the same entrance from the opposite side of the road. You may be able to detect the top of the Entrance sign just behind the car that is slowing down to exit the retail park.


hxxp://tinypic.com/usermedia.php?uo=bpRy0IYlPgOkPcZphjLskoh4l5k2TGxc#.WH44grlT5L8


I submit that it is not reasonable to place an entrance sign on the wrong side of the road where it can easily be obscured by queuing traffic, and expect drivers to notice it on their way into the carpark. It is almost as if Highview Parking do not want customers to see the sign.

This opinion is reinforced by the signs within the carpark itself. This is a picture of the car parked .
There are no signs visible

hxxp://tinypic.com/usermedia.php?uo=bpRy0IYlPgPVsVDVOVC9eIh4l5k2TGxc#.WH44y7lT5L8


This is another view of the car standing in front of the shops. There are 2 parking signs in this picture. You may be able to spot them at the far side of the carpark. Most drivers would only see them (if at all) on leaving the carpark.


hxxp://tinypic.com/usermedia.php?uo=bpRy0IYlPgMmNljMym7kFoh4l5k2TGxc#.WH45J7lT5L8


The BPA Code of Practice (18.2) states:
Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.


[FONT=&quot]There was no contract nor agreement on the 'parking charge' at all. I contend that the driver did not have a fair opportunity to read about any terms involving this charge, as there were no signs viewable at the entrance or from the parking space.

In this carpark, the signs are sporadically placed and can be easily missed until leaving the site. They are unremarkable and not immediately obvious as parking si[FONT=&quot]gns[/FONT]. Furthermore the signs are located high up which makes them far more difficult to read without walking up to them.

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, that most of this site is 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.

[/FONT] 2. A compliant Notice to Keeper was not served - no Keeper Liability can apply.

Although Schedule 4 of the Protection of Freedoms Act 2012 (POFA) potentially gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.
Highview Parking 's Notice to Keeper fails to comply with Schedule 4 in 3 respects:
a) It fails to comply with Paragraph 9(2)(f)of the POFA as follows:
'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;'
As this is prescribed, mandatory wording under statute, it is clear that Highview Parking have decided not to exercise their rights under the POFA and can only pursue the driver.
b) It fails to comply with Paragraph 9(4)(b) which states that the notice must be posted to the keeper’s address so that it is delivered within the relevant period. Paragraph 9(5) states that the relevant period for this purpose is the period of 14 days beginning with the day after that on which the specified period of parking ended.
In this instance the alleged parking contravention took place on 25 October 2016 and the Notice to Keeper was dated 21 November 2016 and arrived 3 days later, so Highview Parking knowingly and wilfully issued an illegal notice. This was pointed out to the operator in the original appeal but the operator failed to take the opportunity to admit its error or cancel the appeal.
c) It fails to comply with Paragraph 4(5) which states that the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).
In this instance, Highview Parking’s Notice to Keeper includes an additional ‘initial debt recovery charge’ of £40 if payment of the charge is not received within 28 days.

Consequently, Highview Parking has forfeited its right to recover any unpaid parking charges from myself, the keeper of the vehicle. As such, POPLA will be unable to conclude that the Charge Notice has been issued correctly.


3 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.

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 Notice to Keeper.

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.''
[FONT=&quot]
4. 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

[/FONT]

Fruitcake

Converted to live links.

Excellent photos, complete with metadata time stamps.

Is the car park covered by byelaws? This would be an extra appeal point if it is.


The photograph below shows the right turn that all drivers must make at the mini-roundabout into the entrance to the Coventry Airport Retail Park. There is no sign visible at the entrance.

http://tinypic.com/usermedia.php?uo=bpRy0IYlPgOJlzOQiYLMb4h4l5k2TGxc#.WH44PrlT5L8


This photograph shows the same entrance from the opposite side of the road. You may be able to detect the top of the Entrance sign just behind the car that is slowing down to exit the retail park.


http://tinypic.com/usermedia.php?uo=bpRy0IYlPgOkPcZphjLskoh4l5k2TGxc#.WH44grlT5L8


This opinion is reinforced by the signs within the carpark itself. This is a picture of the car parked .
There are no signs visible

http://tinypic.com/usermedia.php?uo=bpRy0IYlPgPVsVDVOVC9eIh4l5k2TGxc#.WH44y7lT5L8


This is another view of the car standing in front of the shops. There are 2 parking signs in this picture. You may be able to spot them at the far side of the carpark. Most drivers would only see them (if at all) on leaving the carpark.


http://tinypic.com/usermedia.php?uo=bpRy0IYlPgMmNljMym7kFoh4l5k2TGxc#.WH45J7lT5L8

Eebe

Thank you Fruitcake.

Not knowing anything about byelaws I've had a quick look at wikipedia and think it isn't going to apply. Despite the name it isn't actually part of an airport if that's what prompted the question, just near one and under its flight path.

Coupon-mad

Really good! Nice photos, there are VERY valid points there about scarce signage. I would remove just this admission as it goes against the grain (no admissions, you want the Assessor on your side from the start):

It was purely on this basis that the driver overstayed the allotted time by almost an hour and a half.

Apart from that, job done, you will win. Submit that under 'OTHER' (only) on the POPLA website.

Eebe

Thank you so much CM. I will remove that sentence and submit the appeal. Fingers crossed it works!

I've seen a lot of your advice on this forum and admit I wouldn't have had a clue without it, as well as that of other contributors. In fact I would probably have paid up except that it seemed completely unfair to introduce charging but not warn customers adequately.

I will let you know the outcome and just hope it's in my favour.

Umkomaas

Personally I would place the non-compliant NtK as appeal point #1 as it is a 'black and white' issue. The signage appeal point leaves it somewhat for the Assessor to make a subjective judgement. There should be no need for the Assessor to go beyond appeal point #1 as the appellant needs only to 'win' on one single point for the appeal to be upheld.

In terms of the signage photos, embed them into the appeal document rather than placing a series of links for the Assessor to have to chase around tinypic. Make the Assessor 'your friend', make it easy for them.

HTH