Struggling to write 2nd stage appeal

Fruitcake

I doubt that parking lie own the land. It is most definitely part of the airport so not relevant land as far as the POFA is concerned, so that should be your main (and winning) appeal point. Search this forum for byelaws John Lennon Airport, or similar search criteria.

I suggest you leave negative feedback on trapadvisor/social media/hotel website warning people that the place is a money trap for a nasty parking predator, and the hotel have refused to cancel the ticket for a genuine visitor.

Coupon-mad

The girl said that they couldn't just cancel them without proof as ParkingEye own the car park and not the hotel.

They don't. She fobbed you off, ring back and insist on speaking to the Manager this time and also complain that you were lied to because PE do not own any car parks.

lksablue

Right, I've posted a review on Tripadvisor but that's just 'pending review' I presume because I'm a newbie on there.

I've been through various posts searching as you said and for 'byelaws JLA' but just seem to lose my way.
For the byelaw, am I just changing section 3 of my appeal to something like this......

3) Not Relevant Land
The registered keeper is not liable for this charge as the Crowne Plaza Liverpool John Lennon Airport car park is situated on airport land and therefore is subject to airport bylaws and so POFA 2012 does not apply. I put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws. Not only that, since the byelaws set an amount of penalty for failure to comply with them; a further amount based on your own assessment is unlawful at best and perhaps even fraudulent.
A set of the byelaws are held by Liverpool City Council, which sets out the airport’s stance on roadway use, or misuse. It also lays down a penalty upon summary conviction for a breach of the byelaws of £5 for the 1st offence and a further amount of 40 shillings for a continued daily breach.

Coupon-mad - I will give them a call back, thanks

lksablue

Just to let you know I was advised my appeal to ParkingEye was refused on 13th March so I'm on day 30 now. I know it's my own fault (through one thing and another) but I'm starting to panic a bit now!

Coupon-mad

Day 29 now. The code will work for a good couple of days yet, no panic.

Yes to this, plus a link to the Byelaws:

I've been through various posts searching as you said and for 'byelaws JLA' but just seem to lose my way.
For the byelaw, am I just changing section 3 of my appeal to something like this......

3) Not Relevant Land
The registered keeper is not liable for this charge as the Crowne Plaza Liverpool John Lennon Airport car park is situated on airport land and therefore is subject to airport bylaws and so POFA 2012 does not apply. I put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws. Not only that, since the byelaws set an amount of penalty for failure to comply with them; a further amount based on your own assessment is unlawful at best and perhaps even fraudulent.
A set of the byelaws are held by Liverpool City Council, which sets out the airport’s stance on roadway use, or misuse. It also lays down a penalty upon summary conviction for a breach of the byelaws of £5 for the 1st offence and a further amount of 40 shillings for a continued daily breach.

lksablue

So my appeal is set out below with section 3 changed and the link to byelaws added, I'm hoping this will be ready for submission now. I will also contact the hotel again this morning and see if I can get anywhere with the manager. 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.

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.''


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.

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.

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 '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.org/newlayout/testcases/css/sec526pt2.htm

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

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

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

...and the same chart is reproduced here:

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

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

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

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

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

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

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

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

bailii.org/ew/cases/EWCA/Civ/2000/106.html

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

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, 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) Not Relevant Land

The registered keeper is not liable for this charge as the Crowne Plaza Liverpool John Lennon Airport car park is situated on airport land and therefore is subject to airport bylaws and so POFA 2012 does not apply. I put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws. Not only that, since the byelaws set an amount of penalty for failure to comply with them; a further amount based on your own assessment is unlawful at best and perhaps even fraudulent.

A set of the byelaws are held by Liverpool City Council, which sets out the airport’s stance on roadway use, or misuse. It also lays down a penalty upon summary conviction for a breach of the byelaws of £5 for the 1st offence and a further amount of 40 shillings for a continued daily breach.

Byelaws with respect to Liverpool Airport:
whatdotheyknow.com/request/186739/response/462160/attach/html/3/289941%20Jameson%20att1%20191213.pdf.html

Yours sincerely

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

Fruitcake

There is an APCOA byelaws/airport template appeal point in post 3 of the NEWBIES. I suggest you look at points 2 and 5 from that appeal as I think the wording is better than you have above.

lksablue

So if I delete section 3 from my last draft and add sections 3 and 4 below?

3) Airport Act 1986

Airport byelaws do not apply to any road to which the public have access, as they are subject to road traffic enactments.

Airport Act 1986
65 Control of road traffic at designated airports
(1) Subject to the provisions of this section, the road traffic enactments shall apply in relation to roads which are within a designated airport but to which the public does not have access as they apply in relation to roads to which the public has access.

Both the Airport Act and Airport byelaws say that byelaws only apply to roads to which road traffic enactments do not apply

4) Not relevant Land under POFA 2012; no registered keeper liability (ref POPLA case Steve Macallan 6062356150)

Airport land is not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws.
POPLA assessor Steve Macallan found in 6062356150 in September 2016, that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012.
‘As the site is not located on ‘relevant land’, the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal.’

Byelaws with respect to Liverpool Airport:
whatdotheyknow.com/request/186739/response/462160/attach/html/3/289941%20Jameson%20att1%20191213.pdf.html

Fruitcake

Was the driver in a hire car? You need to check the content and amend it to suit your specific case if not. You can still include the other bits about byelaws that are relevant from you previous draft. I've included a live link, although the formatting is a bit off probably due to the way the document was scanned.

http://whatdotheyknow.com/request/186739/response/462160/attach/html/3/289941%20Jameson%20att1%20191213.pdf.html

lksablue

I'm struggling to write this (was never very good at English in school haha) but is this any good?

3) Not Relevant Land

The registered keeper is not liable for this charge as the Crowne Plaza Liverpool John Lennon Airport car park is situated on Airport land and therefore is subject to airport bylaws and so POFA 2012 does not apply.

Airport land is not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I put the Operator to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws.

Airport Act 1986
65 Control of road traffic at designated airports
(1) Subject to the provisions of this section, the road traffic enactments shall apply in relation to roads which are within a designated airport but to which the public does not have access as they apply in relation to roads to which the public has access.

Both the Airport Act and Airport byelaws say that byelaws only apply to roads to which road traffic enactments do not apply

A set of the byelaws are held by Liverpool City Council, which sets out the airport’s stance on roadway use, or misuse. It also lays down a penalty upon summary conviction for a breach of the byelaws of £5 for the 1st offence and a further amount of 40 shillings for a continued daily breach.

Byelaws with respect to Liverpool Airport:
whatdotheyknow.com/request/186739/response/462160/attach/html/3/289941%20Jameson%20att1%20191213.pdf.html

Also, I phoned the hotel again yesterday as Coupon-mad suggested and spoke with the Guest Services Manager. To cut a long story short, she said that she'll contact ParkingEye and see if she can get the charge cancelled. I'm still progressing with the appeal just in case it doesn't get cancelled. I'm on day 31 for the POPLA code now.