Help with POPLA draft (London, late PCN)

hazmat

Hi everyone,

I'm a newbie (I've read the threads!) and I'm a bit nervous and looking for your help. I'm sorry if I make any formatting errors etc.

I received this ParkingEye Notice to Keeper from Lee Valley Hockey & Tennis Centre car park in London: hxxp://tinypic[dot]com/r/2ikuu4k/9. I challenged the PCN (without disclosing the driver's identity) and have received my POPLA reference number.

Now, my NTK is one that references POFA 2012. However, I received the NTK outside the 14-day relevant period, rendering the NTK non-compliant and thus failing to establish keeper liability. I'm hoping that this should be a clear-cut case in my favour, but because I'm new and inexperienced to this I'm fearing that I'm going to fail or do something wrong.

Using advice I've seen from you all here, I have drafted the following (six-page) appeal to POPLA. Please could you check it through and let me know if there's anything else I need to remove or include (specifically if my index title for point 2 is worded accurately)? Or if there are any tips I'm missing? I'll hugely appreciate any advice! Please let me know if you need any more details about what happened.

Thank you!

_____________________STARTS BELOW____________________________

POPLA Ref <ref>
Parking Eye Parking Charge Notice no <ref>

A notice to keeper was issued on <date> and received by me, the registered keeper of <reg> for an alleged contravention of parking restrictions at Lee Valley Hockey & Tennis Centre car park, 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) The operator’s Notice to Keeper is non-POFA-compliant
2) There is no proof to establish keeper liability
3) No landowner authority nor legal standing to form contracts or charge drivers
4) Misleading and unclear signage

1) The Notice to Keeper is not compliant with the Protection of Freedoms Act 2012 - no keeper liability can apply

This operator has not fulfilled the ‘second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served in time, or at all (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The applicable 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)—
(b) has given a notice to keeper in accordance with paragraph 9.
9(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. (4) The notice must be given by—
(b)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.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 14 days beginning with the day after that on which the specific period of parking ended. In this case, the NTK was received outside this ‘relevant period’. The NTK was issued on 09 February 2017: a Thursday. Therefore, even assuming it was posted on the very same issue date, it is impossible to have been delivered within the maximum 14 day period. In line with the reasoning of sub-paragraph (6), the second working day after the EARLIEST possible postage date was Monday 13 February 2017: undeniably exceeding the ‘relevant period’ set out in 9(1)(b).

As this operator has evidently failed to serve the NTK on time, 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 parking charge documents were not given in compliance with Schedule 4.

2) The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not 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

4) 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:

[supreme court tweet link]

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:

[sign comparison image]

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:

[archive mozilla link]

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

[signazon link]

''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:

[ebay link]

''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:

[bailii link]

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.

I therefore request that POPLA uphold my appeal and cancel this PCN.

Coupon-mad

Yes looks OK to me, you have got this right.

I bet the PCN arrived even later than 13th but it is highly annoying that PE use iMail or Whistl that shows no date of posting, but we know batches post causing a 3 day or more delay.

Re the final point on signage, make sure you are not showing the Beavis sign if the signs at THIS car park are in fact very like the Beavis case sign! Check the appearance of them and if they are similar then remove the wording saying the signs are not as clear as in Beavis.

Also, what was the alleged overstay, how many minutes? Scope for a Grace periods argument like here?

https://forums.moneysavingexpert.com/discussion/comment/72132442#Comment_72132442

That one also has a few other stones to throw at PE as well, if you can adapt them to suit your case. IMHO the longer the better to see off PE who can't be bothered to contest these long appeals in many cases.

hazmat

Hi Coupon-mad, thanks so much for taking the time to help me!

You're right the letter arrived even later than that... But I thought it was worth sticking to what's demonstrably true as I have that on my side.

I'll go to the car park in question on Saturday to check the signs and amend the signage point accordingly. I'm pretty sure they aren't very clear but I have the time to go and be sure and take pictures, so thank you for the recommendation.

I was entitled to 4 hours free parking as a competitor (although I also brought three other competitors with me), so the alleged overstay is precisely 32 minutes. I had to wait a bit for a parking space to become available, and then sign in at reception, for context. This puts it towards the high end of the grace period argument, so I decided to leave that out unless you think it's worth including?

Thanks for linking to that post too. I'll include their points 2) Initial appeal refused as a matter of course without any substantive effort to reply; and 6) Photo evidence appears doctored; at the end of my letter as I think these are stones to throw, as you say. I'll consider adding 7) The charge is a penalty, breaches the CRA & is not saved by ParkingEye v Beavis also if you think it's worth it and applicable to my case?

I know you know your stuff Coupon-mad so I trust your advice. Thank you again!

Coupon-mad

Yes - add those all in, and double check your signs don't look exactly like the yellow/black Beavis sign in the template. Try to angle some pics, take plenty of photos to show how whole areas of bays have no sign in view and add that evidence in as well.

hazmat

Hi Coupon-mad,

After visiting the car park, I was disappointed to find that the signs were legible and similar to the Beavis sign (they weren't yellow and black, but they were fairly comprehensive). They weren't viewable from all spaces, and I have photographic evidence to prove that.

However, for my sanity, I'm leaning towards just removing that point of argument from my appeal entirely. The non-compliance of the PCN is giving me confidence that I have no requirement to comply with PE's fine, even in the event of a rejection of my appeal from POPLA. What would your advice be? Thank you as ever

hazmat

For context, here is my updated appeal which I intend to send tomorrow. I have added the photos to pad it out. Please let me know what you think :-)

POPLA Ref <ref>
Parking Eye Parking Charge Notice no <ref>

A notice to keeper was issued on <date> and received by me, the registered keeper of <reg> for an alleged contravention of parking restrictions at Lee Valley Hockey & Tennis Centre car park, 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) ParkingEye’s Notice to Keeper is non-POFA-compliant
2) There is no proof to establish keeper liability
3) Initial appeal refused as a matter of course without any substantive effort to reply
4) No landowner authority nor legal standing to form contracts or charge drivers
5) Photo evidence appears doctored
6) The charge is a penalty, in breach of the CRA
7) Misleading and unclear signage

1) The Notice to Keeper is not compliant with the Protection of Freedoms Act 2012 - no keeper liability can apply

ParkingEye has not fulfilled the ‘second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served in time, or at all (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The applicable 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)—
(b) has given a notice to keeper in accordance with paragraph 9.
9(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. (4) The notice must be given by—
(b)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.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 14 days beginning with the day after that on which the specific period of parking ended. In this case, the NTK was received outside this ‘relevant period’. The NTK was issued on 09 February 2017: a Thursday. Therefore, even assuming it was posted on the very same issue date, it is impossible to have been delivered within the maximum 14 day period. In line with the reasoning of sub-paragraph (6), the second working day after the EARLIEST possible postage date was Monday 13 February 2017: undeniably exceeding the ‘relevant period’ set out in 9(1)(b).

As this operator has evidently failed to serve the NTK on time, 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 parking charge documents were not given in compliance with Schedule 4.

2) ParkingEye has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not 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) Initial appeal refused as a matter of course without any substantive effort to reply

The initial appeal lodged with ParkingEye included a request for information, including a geographical address, about the landowner or business on the site in order to lodge a complaint.

None of the requested information was supplied as part of the appeal response, and the appeal response itself appears to be a pro-forma refusal. I also pointed out that their NTK was non-compliant. Were the ParkingEye appeal process anything other than a process by which to appear compliant with BPA guidelines then that information would have been provided in good faith as a matter of course, and they ought to have cancelled the charge anyway due to the undeniable non-compliance of the NTK. The fact that it has not been provided indicates that the ParkingEye appeal process is perfunctory and essentially useless.

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

As ParkingEye 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

5) Photo evidence appears doctored

I would also bring into question the authenticity of the photographs taken of the vehicle – most notably the time stamps and location coordinates. By close examination of the photographs, the details are added as a black overlay box on-top of the photos in the upper left hand corner. It is well within the realms of possibility for even an amateur to use free photo-editing software to add these black boxes and text with authentic looking metadata. Not only is this possible, but this practice has even been in use by UKPC, who were banned by the DVLA after it emerged.

I would challenge Parking Eye to prove that a stationary, highly advanced camera was used to generate these photos (including viewing direction, camera location etc.). I would also challenge Parking Eye that they possess the technology to generate these precise types of photographs, as the date stamps have been applied to the photo in such an amateurish way (there are much more sophisticated ways of hardcoding photo data).

In addition, the photographs show XXXX on a road with no significant markings. As there is no marking on the photographs – in particular the ‘arrival’ photograph to indicate which specific camera took the photograph, and no other distinguishing features in the feature other than XXX, the distinct possibility that the photographs were taken of the vehicle when it was elsewhere and used in this instance cannot be dismissed. I again would challenge ParkingEye to prove the photographs as provided to me are indeed genuine.

6) The charge is a penalty, breaches the CRA, and is not saved by ParkingEye v Beavis

This situation is an 'ordinary' contract, a simple consumer agreement with a ticket for parking being arranged in good faith and produced by a faulty set of machines 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 in 'ParkingEye Ltd v Beavis' 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 contracts with a transaction and tariff: ''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 is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term 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 (the CRA, enacted after the Beavis parking event) supports a consumer's position: - Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''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.''

As 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 turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

7) The signs in this car park are not prominent, clear or legible from all parking spaces

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.

Here, the signs are sporadically placed, and indeed unable to view some areas. From several spaces, they are unremarkable, not immediately obvious as parking terms and the wording is illegible from distance. In particular, there is confusion with the signs for the disabled spaces, with these the only signs visible from two rows of bays. For several spaces, it is not clear whether any parking restrictions are applicable, because of the paucity of signage, especially signage which must be read BEFORE the action of parking and leaving the car. Please see the following photos:

(SIX PHOTOGRAPHS)

It is vital to observe in these images, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, that areas of this site are clearly unsigned, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

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. 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.

I therefore request that POPLA uphold my appeal and cancel this PCN.

Redx

ALWAYS , ALWAYS , ALWAYS have a point about signage , its not what YOU think, its about PE proving the signage meets the BPA CoP and the Beavis case, so by querying it you make them prove their case, so ALWAYS query everything you possibly can , making them prove their case, same with GRACE PERIODS too, as ivor pecheque beat PE in court a few years ago because DRIVING ROUND LOOKING FOR A SPACE IS NOT PARKING

PE monitor time on site , not parking time , which is why IVOR won in court

hazmat

Thank you Redx! I will keep what I have above regarding the signage, and I will include an extra point about grace periods, and send off today.

Fruitcake

hazmat wrote: »

Thank you Redx! I will keep what I have above regarding the signage, and I will include an extra point about grace periods, and send off today.

Your inadequate signage point is far to short. The one from Post 3 of the NEWBIES thread is extremely long so it is obvious you have not used it.

Make sure you embed pics rather than have links. That way the assessor has to look at them.

hazmat

Thanks for taking the time to the reply, fruitcake. I had originally included that entire post from the newbie thread, as you can see above, but I removed it following Coupon-mad's advice as the Beavis points were not applicable to my case (the signs at the car park in question are very clear). Forgive me if I've made a mistake here though, I'm trying my best. I did embed pics in the pdf. I've sent off my appeal now so my fingers are crossed, I've been kind of deflated by the whole situation and the time we've all spent on it so I'm looking forward to having it over and done with either way. I'll keep replying to any comments though, and let everyone know when I hear back from them.

Coupon-mad

Sounds like you have done the right thing with the signage point if they were similar to the Beavis signs, I do recommend not then using the Beavis sign in your argument!