Britannia Parking help with POPLA appeal please

yoni_one

Thanks again, I've looked at the PDFs and unfortunately, if you hadn't told me about the link between the two companies I wouldn't have known it based on these documents.

The evidence that I have looked at appears to show that Britannia Parking Group is the trading name of Britannia parking and they are registered until Feb 2017 and under a different number to the Car Park 2015 company.

I know there is a piece of this puzzle I'm just not grasping here, but if they are easy to overturn at POPLA I'll stick to the lack of proof of driver and signage because that is something I can get my head around.

You've been so patient with me but I fear we could be here for ages and me still not 'get it' and I wont necessarily recognise when I'm being a pain.

Thanks again for your generous time. It looks like you are a night owl too

twhitehousescat

you may want to send a letter like the one below , fill in your detaild / vrn and add dates a few weeks before and a few weeks after the ticket (2 mths after)

Example Letter

[Your Address]

DVLA Vehicle Record Enquiries section

Longview Road

Morriston

Swansea

SA99 1AJ

Dear Sirs

Re: VRM AB12 XYZ

As the Registered Keeper of the above VRM could you advise who has accessed my personal details with regards to this marque, how often and when did the DVLA send the keeper details out. Please advise the information with regards to events between xx/xx/xx/ and xx/xx/xx.

I understand there is no charge for this information and look forward to your speedy reply.

Yours faithfully

Mr Registered Keeper

yoni_one

Hi

I have come up with the a POPLA template and would appreciate any relevant suggestions . comments.

Previous advice gratefully received on this thread stating that the company did not exist at the time the ticket was issued has not been included in the template because of my lack of ability to evidence this with confidence that I know what I am talking about.

Supporting information re
Parking charge number xxxxxxx / Britannia Parking
POPLA ref: xxxxxxxxxx

A windscreen parking ticket was issued to vehicle xxxx xxx on 17th December 2016. The registered keeper appealed the ticket online within the timeframe and was informed by email on 19.01.17 that the appeal had been declined. The email notification also stated :

'The Parking Charge Notice was issued to your vehicle because you failed to purchase a valid ticket. It is the driver’s responsibility to ensure that they have read and understood the terms and conditions for using the car park.’

A Parking Charge Notice was sent to the registered keeper dated 25th January 2017 advising that the parking charge is discounted if paid within 14 days of the date of issue. The PCN was received 25 days after the 14 day expiry date.

The notification to the registered keeper was for an an alleged contravention of ‘Failed to display a valid Ticket/Permit/Voucher at Stockport – The Old Rectory. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1. Signage:
The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

http://imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park 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:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

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

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, during the day and evening, and 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. Keeper liability

The operator issued a final reminder notice dated 13th February 2017 stating:
‘…we have contacted the DVLA who informed us that you were the registered keeper or you have been identified as the driver at the time the Parking Charge was issued. In this notice you were informed that the Driver is liable for the Parking Charge.’

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. The keeper of the vehicle has Fully Comprehensive insurance and there is no dispute that the driver was entitled to drive the car; 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.''

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

Furthermore please note that I am an US resident and will be returning to the US on 20th February 2017 with no planned date to return to the UK in the near future.

END OF TEMPLATE

Question - should all photographic evidence be expected to be submitted from the operator or should the keeper submit general photographs taken that may evidence lack of suitable visible signage but may not evidence size or positioning of font on entry to the car park on the actual day and time of the alleged contravention?

Thank you

twhitehousescat

may I suggest that it is sent by mail , along with a fowarding letter quoting your full name and USA address , NO reference to any UK address , NO email address

if they want to adjudicate on a non UK resident , they will have to reply to the USA address

edit , remove "and will be returning to the US on 20th February 2017 with no planned date to return to the UK in the near future." and replace by "and can be contacted by mail at <full address) USA


EDIT : the POPLa code is for the registered keeper not you ,,, unless YOU are the registered keeper?

yoni_one

That is a great suggestion but unfortunately I will miss the deadline if I post it.

Dang!

twhitehousescat

yoni_one wrote: »

That is a great suggestion but unfortunately I will miss the deadline if I post it.

Dang!

EDIT : the POPLa code is for the registered keeper not you ,,, unless YOU are the registered keeper?

what date was the popla code recieved from them ?

yoni_one

Yes I am the registered keeper. It entered my junk mail box on 19th Jan 2017.

I was travelling at the time and unfortunately my mobile only keeps very recently received emails so it wasn't until I was able to access a laptop and go through old junk that I found it - which was very recently.

By my calculations day 28 is tomorrow?

twhitehousescat

well email it will have to be , use a .com type email address , NO uk contact or email and CLEARLY state you address in the USA , if you are not sorted yet , use relative or friends address in the USA , basicly they are stuffed , if you leave a USA address which brittania will see , they cannot try for a default at your UK address , you may as well link or scan those company house reports in , just to cause embarrasment , as POPLa will show them , put everything in a PDF with a fowarding letter , POPLA code , your name your USA address , "see attached PDF"

yoni_one

Once again, many thanks.

They clearly have the UK address the vehicle is registered to but if they send post there it will just sit and wait, so I'll make sure I'm very clear about the address.

Other than that does the template seem up to scratch? Nothing glaringly obvious?

Coupon-mad

You can use a POPLA code for 31 days and it always works online over the weekend, if day 28 is a Thursday. HONESTLY! You have days.

The above POPLA appeal just needs a first appeal point which explains the ways in which the NTK fails to comply with paragraph 8 of the POFA Schedule 4. Here is an example which deals with a postal PCN from Britannia and picks out the wording flaws when compared to paragraph 9:

https://forums.moneysavingexpert.com/discussion/comment/71931587#Comment_71931587

You can use an adapted version of that first appeal point, changed to read '8' instead of '9' (and of course, check that your NTK doesn't meet para 8 of the POFA, which is easy to read and is linked in the NEWBIES thread).

You can't email a POPLA appeal. You do it online under 'OTHER'.