Britannia PCN

MattC3156

Hi

PCN received in Southampton West Quay Retail Park for failing to display a valid ticket/permit.

From reading the various posts am I right in thinking that the Keeper needs to send the standard appeal template via Britannia website - ensuring the driver is not identified under any circumstances on or around day 26 from the date of issue?

They should then send a POPLA code and the Keeper then sends the appeal through to them awaiting a decision?

Sorry if the answers are obvious but the Keeper is concerned regarding payment as money is tight at the moment and the Keeper was considering paying the ticket to avoid any increase in fine etc.

Thanks!

Redx

there is no "fine" , its an INVOICE

and yes the procedure you outlined is correct

MattC3156

Great thanks - I will update results etc.

Coupon-mad

They should then send a POPLA code and the Keeper then sends the appeal through to them awaiting a decision?

Yes, as long as you don't think 'the appeal' is the same first template at POPLA stage.

The NEWBIES thread post #3 tells you about POPLA wording.

MattC3156

No got that - I just need to draft something and paste it on here for viewing/approval?

Coupon-mad

Well you don't need to do much drafting because the POPLA templates already exist in post #3 of the NEWBIES thread. You just build them together, as applicable.

MattC3156

My mistake - yep makes perfect sense now I've read it all!!

MattC3156

Ok, so my appeal was rejected (no surprise) and I have sent my template appeal off regarding no keeper liability, signage etc.

I have had a response from POPLA and from the company saying that they have identified the driver (which they haven't as at no point has the driver been identified) and therefore the appeal is null and void.

I am requested to respond in 7 days.

Is this normal?? I was going to reply along the lines of that the driver has not been identified and therefore the argument over keeper liability doesn't stand - I have never received a NTK in the post and the ticket doesn't seem to say that.

Any ideas on my next steps or have I messed up somewhere along the line?

KeithP

As you haven't posted either your original appeal or your POPLA appeal - and there's nothing wrong with that - there is no way that anyone can say whether you 'messed up somewhere along the line'.

You are being asked to respond to the PPC's evidence, and you need to do that robustly on every point.

MattC3156

Ok - sorry about that - should have realised that. So the original appeal was sent:

Dear Sirs

Re: PCN No. *****

I challenge this 'PCN' as keeper of the car.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis.

Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not
readable to drivers.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the
POFA 2012 and offer me a POPLA code, or cancel the charge.

Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal
notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any
Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter
of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.

I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must
consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days. I have kept proof
of submission of this appeal and look forward to your reply.

==========================

MattC3156

And my POPLA appeal:

Appeal re POPLA code: –

Dear POPLA Adjudicator,

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I contend that I am not liable for this parking charge on the basis of the below points:

1) A compliant Notice to Keeper was never served - no Keeper Liability can apply.

2) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

A compliant Notice to Keeper was never served - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle: 4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4: 6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

Evidently, the operator has withheld from me (as the registered keeper) the required details of my liabilities in the event that the driver is not identified. This might be an omission on the part of the operator or a deliberate attempt to mislead, but regardless, the Notice to Keeper fails to comply with PoFA 2012 (section 9).

2) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

The signs were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015: 68 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. It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer.

In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park.

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.

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. For this appeal, 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.

I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

3) 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 unredacted 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

Yours faithfully