Struggling to write 2nd stage appeal

lksablue

I'm really struggling to write my appeal to popla and wondered if anyone would be able to assist me. I have appealed to ParkingEye and that was rejected and have read the newbies section and also tried searching for anyone else that has been parked at the same location (Crowne Plaza Hotel near Liverpool Airport). I admit that I'm not the brightest spark and always have problems with things like this. At the moment I'm thinking it would be easier to pay the fine and be done but can't really afford it. I wouldn't mind but although I was on the car park (at the time it was dark and pouring with rain so I never saw any parking notices) I didn't actually get out of the car!! I have tried emailing the hotel twice but haven't had any response.

Cheers

Coupon-mad

You just need to put the POPLA templates together, they are already written for you, in post #3 of the NEWBIES thread. Show us what you put together.

lksablue

This is what I've put together. I've realised today is the last day for appealing so I'm hoping you'll have chance to take a look, thanks

Dear Sirs

POPLA Ref: xxxxxxx
PCN No: xxxxxx

A notice to keeper was issued on 10 February 2017 and received by me, the registered keeper of xxxxxx for an alleged driver’s liability for a parking charge at the Crowne Plaza Liverpool. Speke Boulevard, L24 8QD. I am writing to you as the registered keeper of the vehicle associated and would be grateful if you would please consider my appeal for the following reasons.

1) 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.[FONT=&quot] [/FONT]

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[FONT=&quot] [/FONT]and[FONT=&quot] [/FONT]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.[FONT=&quot] [/FONT]

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.[FONT=&quot] [/FONT]

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:[FONT=&quot] [/FONT]
''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.''


2) 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.[FONT=&quot] [/FONT]

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:


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.[FONT=&quot] [/FONT]

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

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[FONT=&quot] [/FONT]'agreement on the charge'[FONT=&quot] [/FONT]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.[FONT=&quot] [/FONT]

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.[FONT=&quot] [/FONT]

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.[FONT=&quot] [/FONT]

The letters seem to be no larger than .40 font size going by this guide:

archive.mozilla.org/newlayout/testcases/css/sec526pt2

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

signazon.com/help-center/sign-letter-height-visibility-chart

''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[FONT=&quot] [/FONT]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.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.

''When designing an outdoor sign for your business keep in mind the readability of the letters.[FONT=&quot] [/FONT]Letters always look smaller when mounted high onto an outdoor wall''.[FONT=&quot] [/FONT]

''...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.''[FONT=&quot] [/FONT]

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':[FONT=&quot] [/FONT]

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.[FONT=&quot] [/FONT]
(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[FONT=&quot] [/FONT]'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106'[FONT=&quot] [/FONT]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.org/ew/cases/EWCA/Civ/2000/106

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.


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.[FONT=&quot] [/FONT]

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).[FONT=&quot] [/FONT]

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


Yours sincerely

#############
Registered Vehicle Keeper

Fruitcake

Is the hotel on airport land? If so then byelaws apply and will give you an additional appeal point.
You should also have the, "not the landowner" appeal point from the NEWBIES in your appeal.
Apart from that, it looks OK to me.

PoPLA codes normally still work for two or three days after the 28 day deadline.

edit.

According to the hotel website, and internet maps, the hotel is indeed on airport land. You MUST therefore include a (winning) byelaw appeal point as the location is not relevant land and therefore outwith the POFA 2012.

Guys_Dad

How long were you on the hotel car park?
Is there a free parking period?

Obviously a generic appeal can help, but without specific details about how long, why you were there, when it arose, what was the date on the NtK etc, have you admitted to being driverwe are struggling to provide you with any killer points.

Effectively, distilling it down, you have simply said "I got a Parking ticket from PE. Can you write me a winning POPLA appeal?"

Coupon-mad

What are the signs like? Often in hotel car parks using ParkingEye, the terms are very complicated with all sorts of exemptions depending on whether a person is:

- a Hotel guest
- using the restaurant
- in the Gym (if there is one)
- using a car wash

Did you admit who was driving?

Is the PE Notice you received, a blank space one (see the link in post #3 of the NEWBIES thread) or one talking about keeper liability after 29 days?

I wrote a POPLA appeal once last year where the sign (PE at another Hotel) talked about tariffs applying and then listed all sorts of different hoops to jump through that had nothing to do with tariffs, which made no sense that the Notice to Keeper says ‘not gaining the appropriate permit/authorisation’ :

4) No evidence of any contravention nor clarification of the alleged breach
The NTK states the contravention is ‘not gaining the appropriate permit/authorisation’ yet the driver has since managed to get a photo of a sign (not seen on the day as this was not close to where the car actually parked).
The sign mentions tariffs applying 24 hours per day, but not ‘permits/authorisation’.

It says on the one hand that ‘tariffs apply 24 hours a day, 7 days a week’ but then mentions in extremely crowded wording, various different hoops that a driver can jump through to get free parking (some involve payment of a tariff, some do not but none mention obtaining a ‘permit/authorisation’ or where to get that permit).

There is not only no evidence that the driver was not a patron but also no evidence that he/she actually contravened one of the various, very different, complicated requirements for patrons. Where a sign is ambiguous, the contract law doctrine of ‘contra proferentem’ applies: the interpretation of a sign that most favours a consumer must prevail.

For example, if the driver contravened the penultimate or ultimate ‘contravention’ on that list (parking on double yellows or not in a bay) then an ANPR-issued NTK cannot possibly evidence that. And it is not clear if a person contravening in those ways needed to pay a tariff or put their VRN in on a keypad because no such obligation is mentioned for those two contraventions.

No amount of ‘evidence’ supplied by ParkingEye to POPLA, of a lack of tariff paid or a list of keypad entries that day, will show that the driver actually contravened that sign, if he/she parked outside of a bay or on yellow lines.

Equally, if the driver was using the car wash and was entitled to 1.5 hours free parking (as per the sign) there is no evidence that he/she did not comply and certainly no evidence of not having a ‘permit/authorisation’ because the sign is silent about permits.

It is my contention – because there is no evidence whatsoever before me - that the driver did not fail to obtain a ‘permit/authorisation’ and I put this operator to strict proof otherwise, including details of the permit scheme and where the driver would have learned about where to obtain his/her permit.

Showing that the driver (allegedly, if so) did not pay a tariff is not enough because not all circumstances require payment of a tariff. And the NTK does not properly describe that contravention, if so, because no unpaid parking charges (tariff) is mentioned at all in the wording of the NTK.

Even showing that the VRN was not recorded by ‘reception’ (i.e. suggesting that a wrong VRN was entered into a keypad) would not be evidence that the driver did not obtain a ‘permit/authorisation’ which is the allegation in the NTK I received as keeper.

I am left to guess which contravention may have occurred and appeal to POPLA without knowing and without seeing any evidence. This ‘contract’ is lacking all transparency!

Contrary to the allegation in the NTK, the sign does not create any contravention of ‘failure to gain a permit/authorisation’ and it is crowded with different terms, so it is not in ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:
http://www.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.
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.

lksablue

Thanks guys, I was called into work yesterday and didn’t get chance to respond!

Fruitcake - I think it is airport land as the hotel is where the old terminal was (I think) even though it isn’t near to where the airport terminal is now. Where you say I should have “not the landowner” appeal point, I thought that was point 3? As for the bit about the byelaw appeal, do I just need to search for someone else’s appeal point and use that?

Guys Dad - I didn’t mean it to sound like as you said, I’m just not very good with this sort of thing (trying to write something “official”) when I’m not sure what I’m trying to say.

It happened on 06/02/2017 at 17:23, I was dropping a friend off for a meeting in the bar (the meeting was nothing to do with the hotel, just a meeting point). The car was parked up on the car park and I stayed in the car the whole time until my friend was ready to leave and exited the car park at 18:21. The evening in question was dark and raining heavily and at no time did myself or my friend see any signs about parking otherwise I would have parked up on the retail park opposite to wait. The first I knew was when the NtK arrived dated 10/02/2017 (although it only arrived about a week after the issue date).

I’d dropped my friend at the hotel door and then found a parking space so it wasn’t like he walked through the car park and would notice any signs. The entrance to the car park was very dark so I was concentrating on when I was going as it was difficult to see with the rain etc. I had done the same thing on a dry dark evening 2 weeks earlier but that time I drove in, dropped him at the door and drove out again as he was making his own way home. I presume that because I was only in there a minute or two then this is allowed.

Coupon-mad - As mentioned above I haven’t seen any signs so not sure what the terms are and it’s quite a way for me to go back (although I can do if necessary). I asked my friend if there were any notices inside the hotel reminding you about payment for the car park but he said he didn’t see any.

I haven’t admitted who was driving, I just used the template in blue from the Newbies section.

The notice received is the one WITHOUT the blank space and mentions about keeper liability after 29 days “You are warned that if, after 29 days from the date given.....”

Thanks again for your help

Coupon-mad

As mentioned above I haven’t seen any signs so not sure what the terms are and it’s quite a way for me to go back (although I can do if necessary). I asked my friend if there were any notices inside the hotel reminding you about payment for the car park but he said he didn’t see any.

No need to go back but does the Hotel have a gym and/or restaurant in which case the sign is likely to have all sorts of different terms?

Have you Google searched (selecting images) to find if anyone posted an image of this sign at this Hotel?

lksablue

I've just checked and it has a gym but states it is off-site which probably doesn't help. It has 1 restaurant but the website doesn't state if it is open to non-residents.

I also found a section on parking on the website....

Number of parking spaces:500
Secure outdoor carpark at front and rear of hotel. Monitored by CCTV cameras. Complimentary parking for all overnight residents, please register your vehicle at reception. All other vistors will pay a £6 fee per 24 hours.

There is also a park, stay and fly option so it looks like you can leave your car whilst you are away for a set number of nights.

I've tried previously and again now to find signs on google images but cannot find anything at all.

Coupon-mad

Complimentary parking for all overnight residents, please register your vehicle at reception. All other vistors will pay a £6 fee per 24 hours.

There is also a park, stay and fly option so it looks like you can leave your car whilst you are away for a set number of nights.

Right, so you can re-write the example point #4 to suit, and add that to the usual template POPLA appeal points about signage and 'no landowner authority' and allege Airport byelaws apply because the whole site is owned by the Airport.

Sounds like this one (and no, it doesn't have to be the same site to warrant a similar POPLA appeal):

http://forums.pepipoo.com/index.php?showtopic=112944

Hotel should be contacted first, again, try a phone call.

HTH

lksablue

I've just telephoned the hotel and asked to be put through to the manager but when the girl on reception asked what it was about she said she could deal with it. Anyway I explained the situation and she said if my friend had any receipts from the hotel, they could be sent to Parking Eye and the charge would be cancelled. Unfortunately, he doesn't have anything.

The girl said that the signs are at the entrance to the car park but admitted they would be hard to see in the dark. They are also placed around the hotel but if you weren't looking for them then you wouldn't really see them!! I phoned from our work phone and all of our calls are recorded so I do have a recording of the conversation.

I explained that I'd read a few reviews on tripadvisor and people complaining as they'd been in the hotel and received a PCN. It looks like the hotel manager arranged for them to be cancelled. The girl said that they couldn't just cancel them without proof as ParkingEye own the car park and not the hotel. She said the only thing I could do was to appeal, I said ok but maybe I should have mentioned about the airport owning the land!