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Please help check my POPLA appeal submission
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fresia
Posts: 22 Forumite
Here's my latest draft:
POPLA Ref: xxx
Park Watch PCN: xxx
I am the registered keeper of DCxx XXX and I wish to appeal a recent, out of all proportion, parking charge notice was issued on the 20 April 2017 by Park Watch, Defence Systems Ltd, The charge is levied despite the driver not being identified.
An appeal was made to Park Watch, but the response was erroneous (addressed as another location known as ‘The Arena’) and clearly a generic cut and paste reply, deliberately and admittedly sent to junk folder inboxes.
Broughton Shopping Park
1.Signage
The signs in this car park are not prominent, clear or legible from all parking spaces
The BPA further states in the case of disabled drivers :
(18.10) So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists.
None of the signs on this site meet this requirement and in fact there are no signs in the location where Park Watch issued this PCN, only an A-board sign of apology from the Shopping Park Management for any trouble caused during the improvement works. (See images attached)
There may be signs but not all areas are well-signed as a car drives through the middle of the site, so unlike the findings regarding the Beavis case car park, the driver here was certainly not 'bound to' have seen the terms nor could be considered to have 'agreed' to a parking contract like Mr Beavis did.
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.
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.
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:
http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
http://www.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:
http://www.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, when driving, 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.
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.
2. NTK
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
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.
3. Breach of BPA Code of Conduct
Park Watch are in breach of the BPA Code of Conduct and in Breach of the under Data Protection Act 1998 for the illegal trading of personal data to a third party known as DRP, a debt collection agency.
The NRK was sent on day 33. An appeal was then lodged with Park Watch within the period of entitlement. During the first 28 days from the date of the NRK letter, A new and further letter from a debt recovery agency was received on day 21 following the NRK letter, despite the NRK stating no such action would take place until after 28 days.
This is in breach of the BPA Code of Practise as the debt recovery letter was issued despite 1) an appeal having be lodged, 2) and it only being 21 days from the NRK letter.
This breach has today been reported to the BPA, DVLA and The Broughton Shopping Park Management.
4. Landowner Authority
No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As this operator does not have proprietary interest in the land then I require that they produce an un-redacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).
Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.
Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs
e) the definition of the services provided by each party to the agreement
I require the Operator to present records as to the dates and times of the signage installation, when the signs were checked at this car park This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system of adequate signage is being managed during the building works.
Failure of Park Watch to follow the BPA code of practice, particularly in contravention of clause (18.10) So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists.
The initial appeal was lodged online on Park Watch’ site on the 13/06/2017, yet Park Watch did not respond until 27/06/2017, when they rejected the initial appeal with a cut and past reply referring to another location known as The Arena.
I request that you uphold my appeal on these basis.
Yours sincerely
POPLA Ref: xxx
Park Watch PCN: xxx
I am the registered keeper of DCxx XXX and I wish to appeal a recent, out of all proportion, parking charge notice was issued on the 20 April 2017 by Park Watch, Defence Systems Ltd, The charge is levied despite the driver not being identified.
An appeal was made to Park Watch, but the response was erroneous (addressed as another location known as ‘The Arena’) and clearly a generic cut and paste reply, deliberately and admittedly sent to junk folder inboxes.
Broughton Shopping Park
1.Signage
The signs in this car park are not prominent, clear or legible from all parking spaces
The BPA further states in the case of disabled drivers :
(18.10) So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists.
None of the signs on this site meet this requirement and in fact there are no signs in the location where Park Watch issued this PCN, only an A-board sign of apology from the Shopping Park Management for any trouble caused during the improvement works. (See images attached)
There may be signs but not all areas are well-signed as a car drives through the middle of the site, so unlike the findings regarding the Beavis case car park, the driver here was certainly not 'bound to' have seen the terms nor could be considered to have 'agreed' to a parking contract like Mr Beavis did.
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.
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.
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:
http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
http://www.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:
http://www.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, when driving, 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.
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.
2. NTK
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
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.
3. Breach of BPA Code of Conduct
Park Watch are in breach of the BPA Code of Conduct and in Breach of the under Data Protection Act 1998 for the illegal trading of personal data to a third party known as DRP, a debt collection agency.
The NRK was sent on day 33. An appeal was then lodged with Park Watch within the period of entitlement. During the first 28 days from the date of the NRK letter, A new and further letter from a debt recovery agency was received on day 21 following the NRK letter, despite the NRK stating no such action would take place until after 28 days.
This is in breach of the BPA Code of Practise as the debt recovery letter was issued despite 1) an appeal having be lodged, 2) and it only being 21 days from the NRK letter.
This breach has today been reported to the BPA, DVLA and The Broughton Shopping Park Management.
4. Landowner Authority
No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
As this operator does not have proprietary interest in the land then I require that they produce an un-redacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).
Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.
Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs
e) the definition of the services provided by each party to the agreement
I require the Operator to present records as to the dates and times of the signage installation, when the signs were checked at this car park This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system of adequate signage is being managed during the building works.
Failure of Park Watch to follow the BPA code of practice, particularly in contravention of clause (18.10) So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists.
The initial appeal was lodged online on Park Watch’ site on the 13/06/2017, yet Park Watch did not respond until 27/06/2017, when they rejected the initial appeal with a cut and past reply referring to another location known as The Arena.
I request that you uphold my appeal on these basis.
Yours sincerely
0
Comments
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What's Parking Eye go to do with a Park Watch PCN?
You need to proof read this again.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
thanks will do, i just cut and paste large chunks. But otherwise are the points valid enough to get me a good chance at the POPLA appeal?0
-
thanks will do, i just cut and paste large chunks. But otherwise are the points valid enough to get me a good chance at the POPLA appeal?
The points have to be relevant to your case/situation. It is no good blindly copying and pasting from another appeal if the points aren't relevant.
We haven't seen the preliminary information so can't really comment.
For example, was ANPR used, was the NTK non POFA 2012 compliant and if so, how? (Were the timescales wrong to transfer keeper liability, was the wording non complaint?)I married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
We don't know, because you needed to post this on your thread. Stop starting new ones.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Sorry but I'm finding this really hard and wondering after spending the whole bl@@dy day trying to put an appeal together if I'd have been better paying it!0
-
Click on your username, to find your first thread.
Reply on it, by copying & pasting the POPLA draft into that thread (the one that tells us the background).
Stop starting new threads. You have started more than anyone else I've ever seen and it doesn't help YOU.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
The points have to be relevant to your case/situation. It is no good blindly copying and pasting from another appeal if the points aren't relevant.
We haven't seen the preliminary information so can't really comment.
For example, was ANPR used, was the NTK non POFA 2012 compliant and if so, how? (Were the timescales wrong to transfer keeper liability, was the wording non complaint?)
Thanks Fruitcake, no ANPR, the NTK was compliant in terms of timescales, but signage and breach of code of conduct passing my details to debt collectors 3 weeks after NTK during the appeal.
I've adjusted my draft and taken away a lot of rubbish. What do you think now?
Cheer, much appreciated0 -
Coupon-mad wrote: »Click on your username, to find your first thread.
Reply on it, by copying & pasting the POPLA draft into that thread (the one that tells us the background).
Stop starting new threads. You have started more than anyone else I've ever seen and it doesn't help YOU.
Ah okay I will do that just now! I've just put second draft on this thread...0
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