CEL POPLA APPEAL for parking at KFC - Help with reviewing!

cromox

Hi all,

First of all, let me say how impressed I was at reading so many cases of predatory parking charges and how the community is getting together to resist.

I’ve received a PCN from Civil Enforcement (with 15 days delay with regards incident day) for parking 48min in a place where they claim has a maximum 30min free parking at my local KFC.

My first appeal by email was bad – I hadn’t searched and read all the good materials which exist here, stupid and innocent me – and although it doesn’t contain an outright admission of being the driver, could be read that way. I’m copying it here:

“I am writing in relation to PCN XXXXXXXXX which I have received yesterday on XXXXXXXXX (although it seems to have been issued on XXXXXXXXX).

It relates to my parking at XXXXXXXXX.

I was very surprised to receive such a notice since I was parking as a paying customer of the KFC restaurant and don't think any such paying customers are expected to order, receive their food, eat and leave within 30min.”

Now, of course CEL has not accepted my appeal. So I’m at POPLA stage.

After reading through the Newbies guides and various precedents, I’ve put together the text below, including 1. NTK not compliant, 2. Signage issues, 3. operator has not shown the individual is liable, and 4. landowner authority.

I still have a few questions:

With regards to 2.:
- Do I need to show pictures of the signs?
- Do I need to provide drawings of the positioning of the signs and their irrelevance when seen from a car?

With regards to 3.:
- Does my earlier appeal email make this argument unusable for me?
- The CEL PCN states: “this notice is issued under Schedule 4 of the protection of freedoms act 2012” à does this allow me to use this argument?

Should I also add something about grace periods?

Many thanks to all for helping with my case!

****************************************************

POPLA Ref XXXXXXXXX
Civil Enforcement Parking Charge Notice no XXXXXXXXX
Vehicle Registration XXXXXXXXX

A notice to keeper was issued on XXXXXXXXX and received by me, the registered keeper of XXXXXXXXX for an alleged contravention of “parking terms and conditions” at XXXXXXXXX. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates
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) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

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

This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates. Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. Civil Enforcement Ltd have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-
’’The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’

The applicable section here is (b) because the NTK was delivered by post. Furthermore,
paragraph 9(5) states:
’’The relevant period...
is the period of 14 days beginning with the day after that on which the specified period of parking ended’’
The NTK sent to myself as Registered Keeper arrived on XXXXXXXXX with the alleged event taking place on XXXXXXXXX, so with exactly a 15-day delay. Even if they had posted it on the same day that they describe as the ‘Date Issued’ it would be impossible for the notice to have been actually delivered and deemed ‘served’‘ or given, within the 'relevant period' as required under paragraph 9(4)(b). This means that Civil Enforcement Ltd have failed to act in time for keeper liability to 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

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:

LINK

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

LINK

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 from view in some areas, particularly from those areas most relevant should they be seen from a car. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

LINK

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

LINK

''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:

LINK

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

LINK

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

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

3. 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

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made 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.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

4. 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

KeithP

Didn't your first appeal to CEL tell them who the driver was?

In which case, they don't need to transfer liability to the keeper.

That in turn makes your points 1) and 3) superfluous.

But wait and see what others think.

Umkomaas

Points 1 and 3 irrelevant - I agree KeithP. Driver identified.

With regards to 2.:
- Do I need to show pictures of the signs?
- Do I need to provide drawings of the positioning of the signs and their irrelevance when seen from a car?

Only show pictures of signs that help your case.

Leave the drawings until you see what CEL submit to POPLA, where you can submit drawings, if necessary, to rebut any maps/layouts that CEL produce.

Should I also add something about grace periods?

As long as it helps your case. Read the BPA Code of Practice clause 13 to check the requirements placed on CEL re GPs.

http://www.britishparking.co.uk/write/Documents/AOS_Code_of_Practice_October_2015_update_V6..pdf

cromox

Many thanks to you both

I'm preparing a redrafted version

Should anybody else have a different opinion, please do not hesitate!

cromox

ok so coming back to you for just my last bit of redrafting.

I'll remove 1 and 3 as suggested, and I'm thinking of adding the following bit as third and last points. Again, many thanks for looking at my case

3) Proof of parking times. ANPR only shows time of entry and exit, not parking. The defendant puts to the claimant for strict proof that the ANPR cameras at entrance and exit point are calibrated, tested and timed correctly taking into account server delays so as to allow sufficient grace period for drivers to drive around the car park looking for a space, parking, getting in and out of a parking space and/or queueing to exit the car park
The defendant denies that the parking period noted on the ‘PCN’ was correct. The entry and exit times are not proof of parking.

4) Grace periods
The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.

The CoP states:

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go...
13.4 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. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

Kelvin Reynolds of the BPA says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this:

<BPA Reynolds article link>

Good car parking practice includes ‘grace’ periods
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

The observation period (at the start)
The ANPR photos on the PCN show an arrival time of 20:04 and a departure time of 20:52 – an alleged overstay of 18 minutes.

The BPA (Kelvin Reynolds is the Director of Policy & Public Affairs) is on record as shown above, as saying that the 'observation period' at the start might take one person five minutes, but another person 10 minutes, depending on various factors”.

Given that no evidence has been provided as to the trustworthiness of the timing system used to generate the timings supposedly relating to the photographs, 18 minutes is perfectly within scope of both the MINIMUM grace periods and any potential error in time recording.

Taking both BPA 'Observation' and 'Grace' Periods into account and unreliability of timings relating to the photographs supplied, I contend that the PCN was not properly given.

Coupon-mad

''since I was parking...''

Arggghhh! I think you might lose due to that first appeal. Oh well, worth a try. So frustrating!

If you lose, we beat them when they try small claims.

cromox

If you lose, we beat them when they try small claims.

Hearing that is still encouraging thanks!

Coupon-mad

It is true, none have proceeded to an actual hearing, all discontinued thus far. We know what we are doing at each stage.

cromox

Ok will submit tonight if no other comments, will stress on

1) signs not clear
2) landowner authority
3) ANPR time vs parking time
4) grace periods

cromox

ok I've submitted, now fingers crosse, again, thanks for your help!

cromox

Hi all,

I submitted my appeal last week. Was just wondering how long it usually takes CEL to submit their evidence.

many thanks!