PCN "No Waiting"

Coupon-mad

Read PCM v Bull in the Parking Prankster's case law. But this is too sophisticated an appeal point for POPLA, they won't get it.

You would be better off searching the forum for 'ParkWatch POPLA' and crib from one written before, plus use the templates linked in post #3 of the NEWBIES thread.

Jamesbrown_2

Thanks Coupon, appreciate all the advice from everyone!

Coupon-mad

OK and show us the draft you put together before submitting it.

Jamesbrown_2

Hey guys, put this together from the appeal points and some digging around other people's appeals, let me know what's what. Also as an aside just realised that on the NTK and the first follow up letter the incident time they've put down is 12 hours wrong vs the time stamp on the photos e.g. (these aren't the actual times) but it happened at 6:00 (am) and they've put 18:00. Don't know if that's useful, or just incompetence.



I am appealing this parking charge notice sent to myself as registered keeper of the vehicle in question.
I contend that I am not liable for this parking charge on the basis of the below points:

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

The signs inside the car park are small and illegible from a driver's seat, especially at night. At the point of being finally able to read the terms, the driver would need to be already inside the loading bay standing right next to a sign, with the vehicle merely temporarily stopped - i.e. certainly not 'parked' as confirmed by the Senior Circuit Judge in the Appeal case in June 2016 of JOPSON V HOME GUARD SERVICES (transcript uploaded separately)*, case number: B9GF0A9E.

This case, being a higher level appeal, is persuasive on the lower courts (i.e. it supersedes other decisions) and it was held:

''20: Neither party was able to direct the court to any authority on the meaning of
the word “park”. However, the Shorter Oxford Dictionary has the following:
“To leave a vehicle in a carpark or other reserved space” and “To leave in a
suitable place until required.” The concept of parking, as opposed to
stopping, is that of leaving a car for some duration of time beyond that needed
for getting in or out of it, loading or unloading it, and perhaps coping with
some vicissitude of short duration, such as changing a wheel in the event of a
puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams
would consist of lines of parked cars.''

21: I am quite satisfied, and I find as a fact, that while the appellant’s car had
been stationary for more than a minute and without its driver for the same period
(whatever precisely it was), while she carried in her desk, it was not “parked”.
Accordingly, for that reason too, the appellant was not liable to the charge
stipulated in the respondent’s notice.''

So, in this case, the driver cannot possibly be fairly bound to be (somehow) already in breach of an alleged 'parking contract' when they didn't have any knowledge it even existed. The only legible part of the sign is the 'P' which - in the absence of other terms at the entrance - positively invites parking.

On the balance of probabilities the actual time stopped to read the sign in the dark, then decide NOT to stay or be held by any 'contract' was (under 5 minutes) (Attachment). This sort of 'immediate fine' entrapment is what the BPA mandatory 'Grace Periods' are used to forbid.

From the BPA Code of Practice, Version 6 - 2015.

13 Grace periods

13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

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:

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:

link

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.

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:

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.


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 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


4. The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.

Paragraph 21.1 of the British Parking Association Code of Practice (CoP) advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The CoP requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

Park Watch’s signs do not comply with these requirements because there car park signage failed to notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 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.

And Paragraph 69: Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent'.

link

Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

And as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''

It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes. A camera icon suggests CCTV is in operation for security within the car park.

Jamesbrown_2

Not sure whether to make a completely separate point about grace periods, as I've put some stuff on it within the signage one but don't know if it's clearer for it to be seperated?

Coupon-mad

Yes I would - search the forum for 'POPLA Kelvin Reynolds observation period' to find recent examples.

And also you need to say why there is no keeper liability (either no NTK or a non compliant NTK, and why).

Jamesbrown_2

- No reasonable Grace period(s) applied.

The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.

The CoP states:

“13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.”

For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

Kelvin Reynolds of the BPA says in a published, official article about good practice:

Link

Good car parking practice includes ‘grace’ periods
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

So the BPA believes that 5-10 minutes 'observation' period is acceptable depending upon various factors and then you must allow a MINIMUM of another ten minutes at the end - and Mr Reynolds says: ''there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.''

The conclusion must be that with 5 - 10 minutes allowed for arrival and observation of the terms, plus AT LEAST ten minutes to subsequently leave, a mere (under 5) minutes all told, must not generate a penalty against drivers who leave as soon as they can, waiting to drive past parked cars and out onto the busy road.

The PCN cannot be deemed fairly or properly given.

Jamesbrown_2

Also just reading through PoFA 2012, point 9.2 a

"The notice must—
(a) specify the vehicle, the relevant land on which it was parked and the
period of parking to which the notice relates;"

As mentioned before, on the NTK and the 2nd follow up letter, they've got the time 12 hours wrong (5am but they've put 17:00) Just wondering if I can/should use this, as the car wasn't on the land at that time/it doesn't specify the period of parking to which the notice relates to.

The time stamps on the photos on the NTK are in the correct 24 hour clock.

Coupon-mad

on the NTK and the 2nd follow up letter, they've got the time 12 hours wrong (5am but they've put 17:00) Just wondering if I can/should use this, as the car wasn't on the land at that time/it doesn't specify the period of parking to which the notice relates to.

Yes indeed, that is a failure to correctly specify the period of parking (never mind the photos on the NTK) so you need to have this as point #1 to tell POPLA that not only does it mean there can be no keeper liability but also, the PCN was not properly given because the vehicle was not at this location a that time (5pm).

Jamesbrown_2

Just put this together,

Title options - Failure to correctly specify the period of parking
or
- This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA)

In the BPA CoP 21.5 “If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012… your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9)”

Link

The Protection of Freedoms Act 2012, schedule 4, 9 (2) states;

“The notice must-
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

Link

The NTK (attached) and follow up letter dated (date/ attached) both specify that the alleged incident occurred at (17:00/5pm) however the vehicle was not at the location at this time.
Park Watch has failed to comply with PoFA 2012 and the BPA CoP by incorrectly specifying the period of parking, this means that they can not make use of the keeper liability provisions in Schedule 4 as this PCN has been wrongly issued and therefore as the keeper of the vehicle, not the driver, I cannot be held liable for the charge.