Captains Table Wells-Next-The-Sea POPLA Appeal

happychapdad

Hi All,

Wonder if you could all help out and critique the POPLA appeal drafted below. Unfortunately, the initial appeal to ParkingEye was very week to say the least, but hopefully this will be stronger. We had 2 PCN the same on different days. Might seem wierd, but when we are in 'strange' towns, we try an pay a few pence more to try and stop this happening.

Unfortunately, am unable to use:

• Non compliance with schedule 4 of the PoFA 2012 because the PCN was sent within time and
• Sign argument because a fee had been paid.

But hopefully the other arguments are strong enough.

Be glad to hear if there are any other clauses that can be added and whether there are any other cases like this (unfortunately couldn't find any).

Many thanks in advance.

Happychapdad

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Dear POPLA

POPLA Appeal

POPLA Ref.

---

ParkingEye PNC no.

---

I am writing as the registered keeper of vehicle ---- --- to lodge a formal appeal against the Parking Charge Notice (PCN) issued by PrivateEye Par Park Solutions to myself as registered keeper on the 12th July 2017 for the alleged breach of parking conditions at The Captains Table car park, Wells-Next-The-Sea on the 7th July 2017. This PCN was received by post on 15th July 2017 stating a parking charge of £100 was to be paid by 9th August 2017.

I appeal to you that I am not liable for this parking charge on the basis of the below points:

1. Sufficient funds were paid for the time spent in the car park.
2. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
3. ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue these charges.


1. The driver paid sufficient funds to cover the time spent in the car park.

The driver on the 7th July 2017, entered the Captains Table car park Wells-Next-The-Sea. The car park was entered at 15:11 and, according to the Automatic Number Plate Recognition (ANPR) system, a total time of 1 hour 18 minutes was spent in the car park.

The driver was unfamiliar with the area and other car parks in Wells-Next-The-Sea and spent time considering whether to stay or go. The driver decided to stay and noted that the fee was £1.80 for up to 1 hour and £2.80 for up to 2 hours. As a result of the uncertainty, the driver paid a total of £2.60 to ensure that the additional fees covered any small amount of additional time spent in the car park.

As detailed in the British Parking Association (BPA) Approved Operator Scheme (AOS) Code of Practice (CoP) Version 4 - February 2014 Clause 13 states that:
“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.”

This clause has clearly not been recognised or taken into consideration when issuing this PCN. Neither a reasonable ‘grace period’ nor the fact that the driver paid additional funds to compensate for unfamiliarity and uncertainty has been considered.


2. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

It is not disputed that the driver has not been identified. Even if POPLA (wrongly, because the law doesn't support this assumption against a keeper) believe that they can 'assume that the operator is pursuing the appellant as the driver of the vehicle' in cases where a non- Protection of Freedoms Act (PoFA) Notice (like this one) was served, there is still the issue of identifying that the individual the operator is pursuing, is the party who is liable.

I am the keeper and I chose to appeal, not the driver and nor can I be held/assumed as if I was that party. No assumptions can be made by POPLA nor parking operators, that 'driver liability' is possible in this situation just because I appealed as registered keeper, as is my right. Henry Greenslade, the previous POPLA Lead Adjudicator stated that it is the keeper’s right not to name the driver, and of course still not be lawfully held liable, under Schedule 4 of the Protection of Freedoms Act 2012.

“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...has no legal obligation to name the driver.”

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper, 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 registered keeper without a valid NTK.

Furthermore the paramount importance of compliance with POFA 2012 was confirmed by Mr Greenslade in his 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable, without the POFA having been followed. A very late and non-POFA 'postal PCN' is absolutely fatal to a case where the driver's identity remains unknown.

Thus in this situation, there is no 'keeper liability' nor 'driver liability' possible and the PCN must be cancelled.


3. ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

I do not believe that ParkingEye has any proprietary interest in the land such that it has no standing to make contracts with drivers in its own right, or to pursue charges for breach in its own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at Court level.

I contend that ParkingEye merely holds a basic licence to supply and maintain signs and to post out 'tickets' as a deterrent to car park users. I therefore require ParkingEye to provide POPLA and me with an unredacted, contemporaneous copy of the contract that it holds with the landowner. This is required so that I may be satisfied that this contract permits ParkingEye to make contracts with drivers in its own right and provides it with full authority to pursue charges, including a right to pursue them in Court in its own name.

For the avoidance of doubt, a witness statement to the effect that a contract is or was in place will not be sufficient to provide the necessary detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). A witness statement would not comply with Section 7 of the BPA AOS CoP as the definition of the services provided would not be stated in such a vague template document.

In addition, BPA AOS CoP Version 4 - February 2014 Clause 7.2 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
f) whether or not the landowner authorises you to take legal action to recover charges due from drivers charged for unauthorised parking.”

So, for this appeal, I require this operator to provide evidence that the landowner authorises ParkingEye to take legal action to recover the charges detailed in this PCN when the driver has clearly paid enough fees to cover the amount of time spent in the car park.

System

I am the keeper and I chose to appeal, not the driver and nor can I be held/assumed as if I was that party.

Yeah actually it can if you refuse to identify the driver when they send a notice. When the law was changed to outlaw wheelclamping, under the Protection of Freedoms Act in return the government assigned the registered keeper as the ultimate liable party if the driver's identity cannot be ascertained.

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.

Again, with the introduction of the Protection of Freedoms Act 2012, a change in law was made to introduce keeper liability for parking charges incurred on private land so there doesn't need to be a presumption, you merely need to not inform the company of the name of the driver and then you will be held wholly liable.

happychapdad

Thank you for taking the time.

So is section 2 about "The operator has not showing that the individual who it is pursuing is in fact liable for the charge." not applicable any more with the statements in the PoFA 2012? Should section 2 be removed then?

Cheers

Quentin

No.

Best ignore that Poster (who has posted in another thread his disappointment that clamping was made illegal - not hard to see where his heart is!)

happychapdad

Am thinking of adding this paragraph into Section 1.

Thoughts would be appreciated.

Many thanks.

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n addition, the BPS AOS CoP Clause 19.3 states:

“If the driver breaks the contract, for example by not paying the tariff fee or by staying longer than the time paid for, or if they trespass on your land, they may be liable for parking charges. These charges must be shown clearly and fully to the driver on the signs which contain
your terms and conditions.”

The time, including the grace period, spent by the driver in the car park was less than the time paid for. Therefore, there is no 'keeper liability' nor 'driver liability' possible and the PCN must be cancelled.

Coupon-mad

Tarambor wrote: »

Yeah actually it can if you refuse to identify the driver when they send a notice. When the law was changed to outlaw wheelclamping, under the Protection of Freedoms Act in return the government assigned the registered keeper as the ultimate liable party if the driver's identity cannot be ascertained.

Again, with the introduction of the Protection of Freedoms Act 2012, a change in law was made to introduce keeper liability for parking charges incurred on private land so there doesn't need to be a presumption, you merely need to not inform the company of the name of the driver and then you will be held wholly liable.

Wrong - you appear to be a private parking employee, ever thought of getting a decent job? Your posts are unhelpful, misleading and downright biased here so far.

A parking scumbag firm CANNOT assume that the keeper was the driver. That's not the same thing as 'keeper liability' but I know most parking firm employees don't actually understand the law, as we have seen time and again here.

Most parking scumbag firms do not comply with the POFA, albeit ParkingEye may have done, but you omitted to mention that in your reply and made it sound like: ''you merely need to not inform the company of the name of the driver and then you will be held wholly liable'' (errrrmmm...there is the small matter of full compliance with Schedule 4 to overcome, and most ex-clamper idiots can't manage it, so kindly don't misleading crow to newbies that these scumbag firms can just hold keepers liable automatically).

Unfortunately, am unable to use: Sign argument because a fee had been paid.

You are the second poster to get that wrong on the same day! Paying a tariff that's displayed in large lettering, does not mean that the rest of the terms were clearly displayed at the machine, with the £100 in large lettering too. Not all PE signs are like the clear ones in the Beavis case so don't throw out the signage point! The template for that is deliberately long and detailed and you do NOT need to be local, have proof, or to check the signs. Please, include it, you must have more in your POPLA appeal.

happychapdad

Really do appreciate your reply Coupon-mad.

Full appeal has been amended with signage point back in and the additional paragraph as shown below...

comments would be greatly appreciated.

Cheers

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Dear POPLA

POPLA Appeal

POPLA Ref.

---

ParkingEye PNC no.

---

I am writing as the registered keeper of vehicle ---- --- to lodge a formal appeal against the Parking Charge Notice (PCN) issued by PrivateEye Par Park Solutions to myself as registered keeper on the 12th July 2017 for the alleged breach of parking conditions at The Captains Table car park, Wells-Next-The-Sea on the 7th July 2017. This PCN was received by post on 15th July 2017 stating a parking charge of £100 was to be paid by 9th August 2017.

I appeal to you that I am not liable for this parking charge on the basis of the below points:

1. Sufficient funds were paid for the time spent in the car park.
2. The signs in this car park are not prominent, clear or legible from all areas of the car park.
3. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
4. ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue these charges.


1. The driver paid sufficient funds to cover the time spent in the car park.

The driver on the 7th July 2017, entered the Captains Table car park Wells-Next-The-Sea. The car park was entered at 15:11 and, according to the Automatic Number Plate Recognition (ANPR) system, a total time of 1 hour 18 minutes was spent in the car park.

The driver was unfamiliar with the area and other car parks in Wells-Next-The-Sea and spent time considering whether to stay or go. The driver decided to stay and noted that the fee was £1.80 for up to 1 hour and £2.80 for up to 2 hours. As a result of the uncertainty, the driver paid a total of £2.60 to ensure that the additional fees covered any small amount of additional time spent in the car park.

As detailed in the British Parking Association (BPA) Approved Operator Scheme (AOS) Code of Practice (CoP) Version 4 - February 2014 Clause 13 states that:
“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.”

This clause has clearly not been recognised or taken into consideration when issuing this PCN. Neither a reasonable ‘grace period’ nor the fact that the driver paid additional funds to compensate for unfamiliarity and uncertainty has been considered.

In addition, the BPS AOS CoP Clause 19.3 states:

“If the driver breaks the contract, for example by not paying the tariff fee or by staying longer than the time paid for, or if they trespass on your land, they may be liable for parking charges. These charges must be shown clearly and fully to the driver on the signs which contain
your terms and conditions.”

The time, including the grace period, spent by the driver in the car park was less than the time paid for. Therefore, there is no 'keeper liability' nor 'driver liability' possible and the PCN must be cancelled.


2. The signs in this car park are not prominent, clear or legible from all areas of the car park.

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:

In the Beavis case, 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.

This case, by comparison, does not demonstrate an example of the '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.

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, 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 the sign is mounted too high making it illegible, not in a driver's eyeline and on the wrong side of the road making it unnoticeable during busy periods. It cannot be assumed that a driver drove past and could read a legible sign.

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.

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:

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.

For this appeal, I require this operator to show how the signs appear from the driver's perspective, not stock examples of 'the sign' in isolation/close-up. I submit that the full terms simply cannot be easily read read when paying for the tariff and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. Therefore, there is no 'keeper liability' nor 'driver liability' possible and the PCN must be cancelled.


3. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

It is not disputed that the driver has not been identified. Even if POPLA (wrongly, because the law doesn't support this assumption against a keeper) believe that they can 'assume that the operator is pursuing the appellant as the driver of the vehicle' in cases where a non- Protection of Freedoms Act (PoFA) Notice (like this one) was served, there is still the issue of identifying that the individual the operator is pursuing, is the party who is liable.

I am the keeper and I chose to appeal, not the driver and nor can I be held/assumed as if I was that party. No assumptions can be made by POPLA nor parking operators, that 'driver liability' is possible in this situation just because I appealed as registered keeper, as is my right. Henry Greenslade, the previous POPLA Lead Adjudicator stated that it is the keeper’s right not to name the driver, and of course still not be lawfully held liable, under Schedule 4 of the Protection of Freedoms Act 2012.

“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...has no legal obligation to name the driver.”

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper, 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 registered keeper without a valid NTK.

Furthermore the paramount importance of compliance with POFA 2012 was confirmed by Mr Greenslade in his 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable, without the POFA having been followed. A very late and non-POFA 'postal PCN' is absolutely fatal to a case where the driver's identity remains unknown.

Thus in this situation, there is no 'keeper liability' nor 'driver liability' possible and the PCN must be cancelled.


4. ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

I do not believe that ParkingEye has any proprietary interest in the land such that it has no standing to make contracts with drivers in its own right, or to pursue charges for breach in its own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at Court level.

I contend that ParkingEye merely holds a basic licence to supply and maintain signs and to post out 'tickets' as a deterrent to car park users. I therefore require ParkingEye to provide POPLA and me with an unredacted, contemporaneous copy of the contract that it holds with the landowner. This is required so that I may be satisfied that this contract permits ParkingEye to make contracts with drivers in its own right and provides it with full authority to pursue charges, including a right to pursue them in Court in its own name.

For the avoidance of doubt, a witness statement to the effect that a contract is or was in place will not be sufficient to provide the necessary detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). A witness statement would not comply with Section 7 of the BPA AOS CoP as the definition of the services provided would not be stated in such a vague template document.

In addition, BPA AOS CoP Version 4 - February 2014 Clause 7.2 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
f) whether or not the landowner authorises you to take legal action to recover charges due from drivers charged for unauthorised parking.”

For this appeal, I require this operator to provide evidence that the landowner authorises ParkingEye to take legal action to recover the charges detailed in this PCN when the driver has clearly paid enough fees to cover the amount of time spent in the car park.

Guys_Dad

"

The driver was unfamiliar with the area and other car parks in Wells-Next-The-Sea and spent time considering whether to stay or go. The driver decided to stay and noted that the fee was £1.80 for up to 1 hour and £2.80 for up to 2 hours. As a result of the uncertainty, the driver paid a total of £2.60 to ensure that the additional fees covered any small amount of additional time spent in the car park."

I really can't see the logic of doing what you did. If the tariff is either £1.80 or £2,80, what on earth made you think that there was some pro-rata facility? Unless the machine is designed to calculate the time allowed for a non standard payment - and I have never seen one - then you pay for full hours. It's like these scandalous "No change given" machines that don't give you any extra time for over paying.

happychapdad

@guys dad "I really can't see the logic of doing what you did."

Understand what you are saying. However, in Milton Keynes (home town), the majority of the parking machines in the town centre DO calculate a pro-rata time based upon the fee paid, even though they only show two tariffs. They also print off the suggested departure time.

Its a good point and will add this to the appeal as part of the unfamiliarity.

happychapdad

Thanks to guys dad, have amended paragraph to read as follows....

"The driver was unfamiliar with the area and other car parks in Wells-Next-The-Sea and spent time considering whether to stay or go. The driver decided to stay and noted that the fee was £1.80 for up to 1 hour and £2.80 for up to 2 hours. In the drivers home town, the majority of the car park machines calculate a pro-rata permitted stay with the departure time stamped on the parking receipt. As a result of the unfamiliarity and uncertainty, the driver paid a total of £2.60 to ensure that the additional fees covered any small amount of additional time spent in the car park.

Coupon-mad

happychapdad wrote: »

@guys dad "I really can't see the logic of doing what you did."

Understand what you are saying. However, in Milton Keynes (home town), the majority of the parking machines in the town centre DO calculate a pro-rata time based upon the fee paid, even though they only show two tariffs. They also print off the suggested departure time.

Guess where Guys Dad lives?!

https://forums.moneysavingexpert.com/discussion/comment/72351177#Comment_72351177

https://forums.moneysavingexpert.com/discussion/comment/72048695#Comment_72048695

https://forums.moneysavingexpert.com/discussion/comment/71611638#Comment_71611638