Captains Table Wells-Next-The-Sea POPLA Appeal

happychapdad

Brilliant.... parking in MK can be nightmare (especially around by argos as seen in one of his posts) - things change all of the time. Thats why with this we thought we were being careful.

Have had it confirmed on good authority (mate is a council traffic warden) that after 1 hour on many of the council car parks, the fee paid is pro-rata. If say 50p per hour, if you pay 60p you get a bit more time shown on the machine and receipt. This is how it is on most of the car parks we go to.

Really do appreciate all of your help. your knowledge in this area is immense

:T

Edit: Is the POPLA appeal about right now to send? Am keen to put this to bed.... Cheers

Guys_Dad

Don't worry - I'll keep stum, (but I wouldn't try it in the NCP parks myself)

Redx

it would not and does not apply on private car parks on private land

the best assumption anyone can make is not to assume that council parking matters and private parking matters are the same or similar

when it comes to private parking , they want to entrap the motorist by all means that they can , so there is no way they would play fair by using "pro-rata" rates

if I went in my local pub or club and paid £5 for a £2.50p pint (yes we do up north) , I cant go back later and get a second one free of charge , nor can I swap it for a double malt due to overpayment either

but the appeal seems ok , but unless you are in a rush to beat the 28 day deadline , wait for more replies

happychapdad

Have followed the guidelines and templates on this forum. But, unfortunately, get the feeling from your comments and statement's that you think we don't have a case to appeal to popla?

Coupon-mad

You do because you are likely to win on something else, like no landowner contract!

Redx

our comments are nothing to do with your chances of winning at popla

the veterans here would not bet either way , but a forum aided appeal has more chance of winning , based on the following points

NO LANDOWNER CONTRACT
SIGNAGE (always put signage in)
FAILED THE RELEVANT CoP
POFA2012 FAILURES
NTK FAILURES
NOT THE SAME AS BEAVIS

etc etc

you only have to win on one point , the PPC (claimant) has to refute ALL points that are raised by an apellant

happychapdad

Hi All. Its been over a week now since the last post commenting on this POPLA appeal.

Based upon comments and "you only have to win on one point" from Redx, have added point 2 to reiterate the grace period not being considered in the PCN and the APNR system times.

Here is the final draft....all comments and feedback would are very much appreciated.

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Dear POPLA



POPLA Appeal



POPLA Ref.

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ParkingEye PNC no.

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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. A reasonable “Grace Period” has not been allowed.

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

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

5. 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. In the driver’s home town, the majority of the car park machines calculate a pro-rata permitted stay when a fee for 1 hour of parking is paid. The departure time is also 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.



The driver did not observe any signage stating “No Change Given” nor did the parking machine state the allowable parking time for the fee when paid. The parking machine accepted the fee paid. The parking receipt did not show the allowable parking duration or departure time.



In addition, the British Parking Association (BPA) Approved Operator Scheme (AOS) Code of Practice (CoP) Version 4 - February 2014 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.”



In this appeal, a tariff fee was paid and the time, including the grace period, spent in the car park was less than the time paid. Therefore, there is no 'keeper liability' nor 'driver liability' possible and the PCN must be cancelled.



2. A reasonable “Grace Period” has not been allowed.



As detailed in the BPS AOS CoP Clause 13.2 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.”



Also BPS AOS CoP Clause 13.4 states that:

“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.”



The APNR system used at the Captains Table car park Wells-Next-The-Sea records the precise time when the driver entered and exited the car park. The car park arrival and departure times were 07/07/2017 15:11:44 and 07/07/2017 16:30:21. A time in car park was quoted as 1 hours 18 minutes. The PCN has not taken into consideration any reasonable “Grace Period” to read signs nor to leave the car park.



These clauses have clearly not been recognised or taken into consideration when issuing this PCN. Therefore, there is no 'keeper liability' nor 'driver liability' possible and the PCN must be cancelled.





3. 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 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.





4. 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.





5. 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.

happychapdad

UPDATE.

Hi All.

Have now received a reply back from POPLA giving 7 days to comment on the evidence provided.

The following comments have been drafted. Feedback and critique are always appreciated. (There is a 2000 character block so comments are brief)

Have chosen to leave some information in because it is available in the Internet and may help someone else.

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The Operator Evidence has been reviewed against the following points submitted in the appeal.


1. Sufficient funds were paid.
The evidence does not acknowledge that additional funds were paid as detailed in the appeal to Operator.


2. A reasonable “Grace Period” has not been allowed.
The APNR are situated at the entrance/exit of the carpark and has not taken into consideration a grace period. Page 5 states a “System generated print out” showed insufficient time. Page 6 states that a grace period of “a minimum of 10 minutes or more” is in place. This is ambiguous and not been taken into consideration in the PCN.


3. The signs in this car park are not prominent, clear or legible from all areas of the car park.
From the evidence, the signage is not clear or legible. The Captains Table has been permanently closed since 2015 as detailed show in social media page facebook /Captains-Table-1512097539081131/ (last entry was September 2015) and at the time of the PCN as shown at website whatpub.com /pubs/NOR/1159/captains-table-wells-next-the-sea. The signage has date stamps 11/02/2015. The signs also do not state “No Change Given”.


4. The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
The evidence does not acknowledge that the Driver has not been identified and are pursuing the keeper.


5. ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue these charges.
The contract shown in evidence Section G shows a contract with COLONIAL AND SCOTTISH INNS LIMITED signed by Director HIGGINSON, Michael David dated 5/4/15 (resigned 15/12/2015 ref: beta.companieshouse.gov.uk/company/07858038/officers.) The contact “INITIAL TERM” states “A period from the Effective Date and expiring after 24 months”. When this PCN was issued, this contact was expired and not legally binding.

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Coupon-mad

The APNR are situated

should read

The ANPR cameras are situated

and I would move this:

The Captains Table has been permanently closed since 2015 as detailed show in social media page facebook /Captains-Table-1512097539081131/ (last entry was September 2015) and at the time of the PCN as shown at website whatpub.com /pubs/NOR/1159/captains-table-wells-next-the-sea.

and instead have it in your final point, to cast doubt on the contract being renewed after 24 months because the pub is long since closed.

Edna_Basher

happychapdad wrote: »

The following comments have been drafted. Feedback and critique are always appreciated. (There is a 2000 character block so comments are brief)

POPLA have had nearly 2 years to sort their rubbish website out to allow documents to be uploaded at this stage of the process.

Don't feel you need to be constrained to just 2,000 characters. You can send your comments by email to info@popla.co.uk. Ask POPLA to confirm that your comments have been added to your case file and that they will be fully reviewed and properly considered by their assessor.

You can use the 2,000 character box to explain what you have done and why.