Railway Station Car Park PCN / POPLA Appeal

evop1

Hi,

I received a windscreen PCN from MET Parking on 28th March for failing to display a valid ticket at Haddenham and Thame Railway Station car park. The driver had a weekly parking ticket, but simply forgot to display it on the day. Railway bylaws are mentioned on the signs in the car park, albeit pretty small.
I appealed as the registered keeper via the online appeal page using the template text in the NEWBIES thread on day 26 following the notice. Added in that I attached copies of the driver's receipt/ticket to resolve the dispute as proof that they were a genuine customer and attached the relevant photos.

Yesterday, I received an email reply as follows;

Dear XXXX,
Re: Parking Charge Notice Number XXXXXXX (Vehicle: XXXXXXX)
Site: (374) Haddenham and Thame Parkway Station Issue date: 28/03/2017
Thank you for your correspondence regarding the above parking charge notice.

Due to regulations we can only correspond with the driver of the vehicle or the registered keeper once we have contacted the DVLA to obtain registered keeper details. Please provide us with the name and postal address of the driver.
Please send this information to customer.services@metparking.com
Please note that the charge will be placed on hold for 14 days to allow sufficient time for the requested information to be provided to us. If we do not receive driver details within the 14 days, we will contact the DVLA to obtain registered keeper details and correspond with the registered keeper.
Yours Sincerely
Customer Services
MET Parking Services Ltd

Just wondering what the next step was as they haven't given me a POPLA code?
Should I do nothing and wait for the NTK to arrive?

Any help appreciated.

Fruitcake

Ignore it and await a PoPLA code. Amongst other appeal points, your winning point at PoPLA will be non-relevant land as byelaws apply, therefore the POFA 2012 does not apply and therefore there is no keeper liability.

If you stated in your appeal that you are the registered keeper, then you should also complain to the BPA that your appeal has been ignored.

evop1

Yes, I appealed as the registered keeper, they give you the option on the appeals page. I will sit it out and complain to the BPA in the meantime.

Thank you for your help.

mistercesq

fruitcake wrote: »

ignore it and await a popla code. Amongst other appeal points, your winning point at popla will be non-relevant land as byelaws apply, therefore the pofa 2012 does not apply and therefore there is no keeper liability.

If you stated in your appeal that you are the registered keeper, then you should also complain to the bpa that your appeal has been ignored.

boom! :t :t :t

evop1

Update and POPLA appeal Draft

I received an NTK in April, which I appealed via post as I couldn't do it online again. Received a rejection letter as expected dated 10th June, but this time they gave a POPLA code.

I've drafted the POPLA appeal and would really appreciate it if someone could give it the once over to check it's all there and I haven't missed anything?


POPLA Reference Number: XXXXXXX

As the registered keeper of the vehicle XXXXXXX I wish to appeal a recent parking charge issued by MET Parking Services Ltd. I submit the points below to show that I am not liable for the parking charge:

1. Failure to establish owner.
2. The location in question is not relevant land.
3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge.
4. No Authority.
5. The signage was not in accordance with the BPA code of practice and was not sufficiently prominent to form a contract.
6. No person or body other than the Courts can impose a penalty for breach of Byelaws 14(1), 14(2) or 14(3) of the Railway Byelaws 2005.


1. Failure to establish owner
Sites designated as Railways by the Secretary of State are subject to statutory control in the form of byelaws. POFA 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050.

My understanding is that the owner of the vehicle is liable for any penalty, if it applies, and the owner has not been identified. As such, I am able to appeal as keeper (going by the POFA 2012 definition) but cannot be held liable under any byelaw because the Train Operator would have recourse only to pursue the owner via the Magistrates Court and that has not occurred. This is a third party agent pursuing the day to day keeper.


2. The location in question is not relevant land (ref POPLA case Steve Macallan 6062356150).

The location in question is not 'relevant land' as defined by the Protection of Freedoms Act 2012, as it is owned by Chiltern Railways and is subject to the Railway Byelaws. The Operator is not the owner of the land in question, and therefore does not provide any consideration which may form a contract with motorists. Any consideration, in the form of a parking space, is provided by the landowner, in this case Chiltern Railways, and any liquidated damages for breach of contract would be owed to the landowner, not to the Operator. The Operator has provided no details showing their authority to exercise parking controls on railway land, nor provided contact details at the Chiltern Railways to whom I can direct a complaint.

The British Parking Association’s (BPA) Code of Practice (CoP) states in section 7.1 “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.”

The Operator has not provided an unredacted copy of such authorisation. In the event that proof of such authorisation can be provided I challenge it’s validity should the date of commencement, termination date and validity of the signatories identity of the contract be unclear. The Operator has failed to comply with any such authorisation by breaching BPA code of practice as identified under item’s 2, 5, 6 and 7. Furthermore the operator has omitted clear information about the process for complaints including a geographical address of the landowner.


3. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103). In the operators own evidence provided in the initial appeal rejection, merely shows the vehicle and provides no evidence what so ever as to who the driver may have been.

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.!

Where a charge is aimed only at a driver then, of course, no other party 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point above.


4. No Authority
Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. I do not believe that MET Parking Services has landowner authority and, as such; the operator has not met the requirements of this section of the BPA Code of Practice.

Section 7.1 states “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

Section 7.3 states “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

MET Parking Services are required to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. Any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority.

As MET do not have proprietary interest in the land, I demand that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract. I do not believe they have such authority.

MET has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

As a third party payment system is operational at this location, any landowner contract and supplementary site specific user manual, must also provide evidence that this company has a contract with the landowner permitting the following:
a) payments by this system
b) MET Parking Services have a contractual agreement with the pay by phone company granting this consent for use at this location.
c) No DPA rights have been contravened as a consequence of using such a system
d) Full planning consent is in force for the signage at the location.


5. The signage was not readable so there was no valid contract formed between MET and the driver.

Having visited the location of the alleged “breach”, it is evident the signage provided by MET does not comply with the BPA code of practice in particular 18.3, 18.5, 18.7, 18.8 and 18.10. In addition, signs are unlit and therefore illegible in the hours of darkness and furthermore, it is unclear as to who any contract might have been formed with as the signage states both ‘Chiltern Railways’ and ‘MET Parking Services’. MET are required to show evidence to the contrary.

Unclear signage breaches Appendix B of the BPA Code of Practice which states that contractual terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. In the absence of sufficiently prominent and detailed signage, the driver could not have been made aware of any charges applicable nor that a contract had even been proposed by MET in respect of the alleged event.

There is no offer to park at the location by payment of a charge, and there is no description of what the driver would receive from such a contract. The Appellant submits that a valid contract was not offered; even if (non-compliant) signs were present, the driver was not offered the opportunity to enter into a negotiation in order to influence the contractual terms, nor given the opportunity to accept or reject any terms.

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:

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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:

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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:

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

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''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:

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''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:

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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.

The Appellant submits that, if signs were present on the day of the alleged event,they were not prominent enough to form a valid contract. The Appellant submits that no detailed terms relating to this Operator's onerous, inflated penalty charge were visible, and it is therefore apparent that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer,acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

6. No person or body other than the Courts can impose a penalty for breach of Byelaws 14(1), 14(2) or 14(3) of the Railway Byelaws 2005.

As persuasive evidence, see the Freedom of Information Request here:

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Any definition of “authorised person” (if MET argue they are such) is not relevant in this context. There is nothing in the Railway Byelaws 2005 which states that such a person or private firm has any power to impose a ‘penalty’.

Only a Magistrates’ court can, upon laying of the case by the landowner, who are the Train Operating company (TOC).

Certainly a private firm cannot dress up a ‘charge’ and call it a ‘penalty’ just because they happen to be agents of a TOC at a Railway car park and they feel that calling their charge a penalty gives them a more imposing and intimidating status than issuing ‘parking charges’.

I put MET to strict proof to show the basis of their ‘penalty’ and state the type of court within which they believe they would be able to enforce this ‘PN’ in their name, as required by the BPA CoP. If it is the Magistrates Court I put them to strict proof that they have the power and authority to do this and that they have done so, showing case files, claim numbers, and evidence from the TOC as well as a rebuttal of the publicly-available FOI information, if MET submit it is incorrect. MET will also have to prove with documentary evidence that the money from these alleged 'penalties' goes to the TOC (as a fine or penalty must) and not to MET (as a contractual charge dressed up to impersonate a penalty would).


I therefore respectfully request that POPLA uphold my appeal and instruct MET Parking Services to cancel the Charge.


Yours faithfully


thanks in advance

Coupon-mad

Bumping this up from page 4, for people to see & comment, please.

evop1

Bump, if anyone can help? confirm ok?

thanks

evop1

Bump again if anyone can check POPLA appeal in post #5 is ok?

would appreciate any help before submitting appeal today.

Fruitcake

I would ensure the word Byelaws appear in the title, and in the sub-headings where relevant.

For the inadequate signage point, you should embed the images in your document and save it as a pdf rather than put links in.

Overall I think you have everything covered.

evop1

Thank you Fruitcake.

Embedding images is no problem, I'll edit/add the links back into the post when I am allowed to, for anyone else searching.

Fruitcake

You can upload pics to a web hosting site such as tinypic or photobucket, then quote the URL here, but change http to hxxp. Someone here will convert them to a live link for you.

Make sure anything personal is redacted.