NTK out of date but referred to POPLA

Elwick

hi,


Apologies for the long post but wanted to include details of my initial appeal to the Brittannia Parking, and draft POPLA appeal for comments and help please.


I received a NTK over Christmas, for an overstay in the Avebury multi-storey car park in Milton Keynes. I was particularly annoyed as the car is parked there often and has never overstayed before. On this occasion the parking machine took all of the £3.50 payment for parking all day, but only registered £3.00 which appears on the ticket, and this was not noticed by the driver (not me) at the time.


When I received the NTK it was dated 19 days after the date of the contravention/overstay, and does not contain any reference to POFA or transferring liability etc. It asks me to tell them the name of the driver, which I did not do, as I was not the driver.


I did not name the driver, but appealed directly to Brittannia using the Step1 template on the following grounds:


1. The notice to keeper is incorrect. issued 19 days after the event it failed to meet the obligations of Schedule 4 of the POFA Act 2012, and I request that the charge be waived.

2. There are clear mitigating circumstances to the reason why the vehicle overstayed: The intention was clearly to pay for all day parking, but that the full amount was not registered due to a malfunction in the payment machine.

3. The charge is disproportionate and not commercially justifiable

4. Signage fails the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis.

5. Brittannia have given me no information about their policy with the landowner to cancel such a charge.

I made no admission as to who was driving and requested them to either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.


Anyway, not too surprised when I received a rejection from Brittannia Parking this week and have been putting together an appeal to POPLA based on the templates on the forum. Any comments or suggestions would be really welcome, as I want to get this as strong as possible before appealing via POPLA.


Because of the character limit I'll add my draft appeal to POPLA in the next post:

Elwick

This is what I have drafted so far based on the fantastic template language on the forum. I would be really grateful for any help or advice!

Thanks,

Elwick

Appeal to POPLA




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

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. Brittannia have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

• sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’

The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period…is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent to myself as Registered Keeper arrived some 3 weeks after the alleged event. The NTK issued by Brittannia Parking states the ‘date of contravention’ as 4th of December 2016, and ‘date of notice’ as 23rd of December 2016, (19 days later), hence the NTK can not be considered to be deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b).


This means that Brittannia have failed to act in time for keeper liability to apply. Furthermore, it is clear that Brittannia know this because they have used the alternative version of their template ‘Parking Charge Notice’ – the one with a blank space near the bottom of page one and no reference to ‘keeper liability’ or the POFA.


So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was - and that person was not me.




2) The operator has not shown that the individual who it is pursuing is in fact 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, not by POPLA, nor the operator, nor even in court. 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 charge cannot be enforced against a keeper without a POFA-compliant NTK.


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 – they will fail to show I can be liable because the driver was not me.

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.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:


''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''





3) Brittannia has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

As this operator does not have proprietary interest in the land then I require that they produce an unredacted, contemporaneous copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions 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.


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.Brittania Parking have not demonstrated that they had authority to issue parking notices for this site on the date that the PCN was given, and they have not provided a copy of the contract which would allow me to determine my liability and/or to request cancellation of the charge. Despite my specific request of 3rd January, Brittania Parking have not provided me with a copy of the contract with the landowner or on site businesses, as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.


I do not believe that the contract allows Brittannia to charge paying visitors £100 for a system or keypad error. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.

Elwick

4) On this day there were issues with one or more of the parking machines.
Brittania Parking records will show that the vehicle is often parked in the Avebury Car Park in Milton Keynes and has never overstayed previously. The driver and I are fully aware of the parking costs which are:
Up to 1hour: £0.60
Up to 3 hours: £1.20
All day: £3.50
The driver parked, and upon trying to pay the £3.50 charge for all day parking, tells me that they had problems with the payment machine not accepting the coins. The driver contends that the machine eventually accepted the full £3.50 payment despite the machine malfunctioning more than once and rejecting coins.
On reviewing the parking ticket after receipt of the NTK, this confirms that payment of £3.00 was made. In making a payment of £3.00 it should be easily recognized and appreciated that the clear intention was to pay for all day parking (£3.50), but that the full amount was not registered due to a malfunction in the payment machine. The underpayment of 50p was not noticed at the time.
Full payment was made for all day parking. If a fault when this machine was certainly malfunctioning caused the system not to collect the full payment, then that is a matter within Brittannia’s control, not the driver’s fault, as was found in Claim No C0FC15W4, ParkingEye v Ms G. before Judge Middleton at Bodmin County Court on 26/10/16:
Link to :parking-prankster.blogspot.co.uk/2016/10/Brittannia -lose-in-court-unsolved.html
In this case under appeal now, in all probability, there was a machine failure as in the above similar court case from October 2016.

5) Breach of the BPA Code of Practice on ANPR.
It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR which requires checks to be made to ensure that a charge is ‘appropriate’ before issuing a PCN.


Wondered whether to question accuracy/calibration of the ANPR system??
Failure to tell a driver how the data will be used is an ICO breach AND a ‘misleading omission’ of a material fact – prohibited by consumer law, bringing me to my next point:

Elwick

6). The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.

The driver has informed me that the machine was not working properly and did not accept the full £3.50 payment. No evidence has been produced either way by this operator as to the cause of the issue nor any consistently-stated facts that made £100 charge payable. The £100 parking charge far exceeds the cost to the landowner of the underpayment of 50p. I therefore feel the charge asked for is punitive and unreasonable.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position. At 47 in the Court of Appeal Judgment, it was held:
''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ‘’

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge ‘out of all proportion’ to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man. A huge charge arising under the excuse of an unexplained event such as a mechanical or system error is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 supports my position that the failure in performance of the keypad and/or failure by the operator to diligently carry out the necessary checks to ensure charges are not issued inappropriately, is unfair and unenforceable:
LINK: legislation.gov.uk/ukpga/2015/15/schedule/2/enacted
- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.
The Consumer Protection from Unfair Trading Regulations 2008 also supports my position that this commercial practice of charging for their own system failure is unfair:

LINK:legislation.gov.uk/ukdsi/2008/9780110811574/regulation/3
’’Prohibition of unfair commercial practices’’: 3.—

(1) Unfair commercial practices are prohibited.

(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if—
(a) it contravenes the requirements of professional diligence; and
(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer...
(4) A commercial practice is unfair if—
(a) it is a misleading action under the provisions of regulation 5;
(b) it is a misleading omission under the provisions of regulation 6; ‘’

I have shown that Brittannia have failed all of the above tests (my bold) which makes a charge under these circumstances prohibited and unenforceable. The Beavis case established that the penalty rule was certainly deemed ‘engaged’ in parking charge cases. Even if POPLA cannot consider consumer law (whyever not?) then the evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.


7)The signs are not prominent, clear or legible from all parking spaces
The signs and the machine tariff board (and the small screen itself on the malfunctioning machine) were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:
LINK: legislation.gov.uk/ukpga/2015/15/contents/enacted
68 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.
It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:-

LINK: //imgur.com/a/AkMCN
The terms appear to be displayed inadequately at the machine, where only the tariffs are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size going by this guide:-

LINK:archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
LINK.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. However, if you…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:-
LINK.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.''

Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'.
I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. 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 have kept proof of submission of this appeal and look forward to your reply.

Elwick

So that is my draft POPLA appeal based on all of the great advice here on the forum.


I had to take out the links because I am a new poster, but the templates are linked from the sticky posts for newbies.


Any comments or help would be very gratefully received.


Thanks in advance,


Elwick

Coupon-mad

Blinking brilliant! A perfect example of how a newbie can use the POPLA templates and other info to put together a humdinger of a POPLA appeal that will smash Britannia.

They will throw in the towel within a week, I predict!

Wondered whether to question accuracy/calibration of the ANPR system??

I never bother, POPLA never consider it as it is something the appellant can't prove and the PPC (if defending the appeal, which Britannia will not) will just say their system is the bog's d0ll0cks and that point gets nowhere. The only thing to say about ANPR is that the signs do not state how the ANPR data will be used and fail to divulge the commercial intent of the camera system which most drivers would think is for security of the car park/their cars. Failing to divulge 'commercial intent' and how camera data will be used is contrary to ICO rules and consumer law.

Nice one.

Elwick

Thanks Coupon-Mad,


The resources that you and others have put onto the forum are fantastic. There is no way that a newbie could do this independently. I will certainly add the bit about the lack of information about ANPR cameras being used to collect charges rather.


I'll update the post as I hear about the appeal.


Cheers,


Elwick

Elwick

Quick question: When submitting the appeal to POPLA (as a pdf) I will include a copy of the NTK sent to me by Britannia. Should I also include a copy of my appeal to Britannia, and copy of their refusal of the appeal? i.e. everything I've had so far amalgamated into a single pdf file?


Thanks!


Elwick

Redx

you could if you want to, but they should actually add those to their evidence pack, if they dont fold beforehand

the_wheels_have_fallen_of

Elwick - I have had amazing advice already from Redx and I have just read your appeal which I am about to construct to POPLA myself. Agreed - these guys are great and thanks to Coupon Mad and Redx and others who help us newbies !!

System

Can you send that paperwork to David Dunford at the DVLA and point him to the audits on Britannia where they were banned for quoting POFA out of time. (david.dunford@dvla.gsi.gov.uk)