PSN - Potentially big trouble

Redx

you are the keeper and they failed POFA2012

so they have an uphill mountain to climb if the keeper appeals citing POFA2012 and does not reveal who was driving

AJP01

Update as of 26/09/2017
I am still waiting for the PCS appeal result of my PCN for the 30/31st of August.

However I have received a response regarding the PCN for the 05/09/2017. For my appeal I used the blue template and as RK did not name the driver at the time. The letter was sent after the 14 day period required to act POFA2012 with which they cited on the PCN.

This is the word for word response from the appeal by PCS EXCEPT where I have excluded the POPLA code provided and any URLS that may have existed. I have also attached the images caught by the APNR that they sent to me in my appeal response.

Response:
"Thank you for your email regarding the above Parking Charge Notice (PCN).
I have carefully reviewed the case and have considered the points that you raised. Unfortunately, I cannot cancel the PCN and it is still payable. I have explained my findings in more detail below.

My findings
The site in question is subject to terms and conditions, which are stated on signs throughout the area. As these terms were breached on the date in question, a PCN was correctly and legitimately issued.

Please be advised that your vehicle was parked within an unauthorised area.

I attach photographic evidence taken at the time of the parking contravention.

Sinage

The signage on site is sufficient and is in line with the guidelines laid down by the British Parking Association (BPA).
The majority of motorists who park at the site do so without receiving a PCN. This is undoubtedly due to the fact that they are aware of the terms and conditions of the site. If, as you claim, the signage was inadequate, the terms and conditions of the site would be unknown to the majority of drivers and many more PCNs would be issued here.

What you need to do now
You now have three options to choose from:
1) Pay the PCN at the prevailing sum of £60.00 by 10/10/2017. Please note that after this time the discounted rate will no longer apply and the amount outstanding will rise to £100.00 and will need to be paid by 24/10/2017. Payment can be made online or by phone. Go to or phone xxxxxxxxx. You can find full details of how to pay on the PCN issued to the vehicle and/or on the letter(s) sent if applicable.
2) Make an appeal to POPLA (Independent Appeals Service) by appealing online at POPLA code: xxxxxxxxx). The only grounds for making an appeal are stated on the website and to be considered the appeal must be received by POPLA within 28 days of the date of this correspondence. Please note that if you opt to appeal to POPLA and the appeal is unsuccessful you will be only able to settle the PCN at the full amount of £100.00.
3) If you choose to not make payment or appeal, the amount outstanding may be sought via a debt recovery company and/or court action where further costs may be incurred as a result"

End. After this it just states about more information and payment methods.

I believe the next step would be to appeal to POPLA as they have given me a verification code.

As I have never appealed to POPLA before could someone please help me formalise an appeal that I could send. From what I am aware this forum has a high success rate when appealing to POPLA. Any and all help would be appreciated.

I am having trouble submitting the images, could someone please advise me on how I could insert an image into the message, I believe it could be used as part of my POPLA Appeal.

KeithP

AJP01 wrote: »

I believe the next step would be to appeal to POPLA as they have given me a verification code.

That's right.

AJP01 wrote: »

As I have never appealed to POPLA before could someone please help me formalise an appeal that I could send. From what I am aware this forum has a high success rate when appealing to POPLA. Any and all help would be appreciated.

You need to refer to post#3 in the NEWBIES thread for comprehensive guidance.

AJP01 wrote: »

I am having trouble submitting the images, could someone please advise me on how I could insert an image into the message, I believe it could be used as part of my POPLA Appeal.

Upload any pics to a picture hosting website, e.g. tinypic, then post the link here. You won't be able to post a good link, but just change 'http' to 'hxxp' and someone will fix it for you.

Redx

if you want pics in your popla appeal, embed them and save it as a pdf, uploading it to popla by choosing OTHER when your appeal is finalised

as mentioned above, post #3 of the NEWBIES FAQ sticky thread covers popla, in fact that same thread covers all the questions you can think of, its why its there

in post #1 you stated you had read that thread (are you sure you did ?)

PCS have used a typical template for their rejection and this was to be expected , plenty of examples of a MY FINDINGS reply exist , ignore it and only concentrate on using its popla code

they would get no money at all if they accepted it , so they dont accept anything , not even if you had died 5 years ago and been cremated

AJP01

Redx wrote: »

if you want pics in your popla appeal, embed them and save it as a pdf, uploading it to popla by choosing OTHER when your appeal is finalised

as mentioned above, post #3 of the NEWBIES FAQ sticky thread covers popla, in fact that same thread covers all the questions you can think of, its why its there

in post #1 you stated you had read that thread (are you sure you did ?)

PCS have used a typical template for their rejection and this was to be expected , plenty of examples of a MY FINDINGS reply exist , ignore it and only concentrate on using its popla code

they would get no money at all if they accepted it , so they dont accept anything , not even if you had died 5 years ago and been cremated

I did but there was a lot to take in lol.

With regards to the images they have provided, on the drivers "entry" on this date the number plate is quite literally unreadable and they have cropped a picture of the vehicles number plate from another image to place above the captured APNR image on entry, while doing the same on exit where the number plate is only just readable. it also does not show the vehicle "parked" and any stage during the time frame. Is this a potential point to raise to POPLA or would they throw this out as a mitigation and not legal point?

Also with regards to PCS sending the letter after the 14 day period, is this point of not being able to rely on POFA 2012 for the named driver included in the argument on the newbies thread?

Appreciate the help. I will try to formulate my POPLA appeal tomorrow, would you be able to check it over for me please?

AJP01

KeithP wrote: »

That's right.



You need to refer to post#3 in the NEWBIES thread for comprehensive guidance.



Upload any pics to a picture hosting website, e.g. tinypic, then post the link here. You won't be able to post a good link, but just change 'http' to 'hxxp' and someone will fix it for you.

Thank you, i think because i am classed as a new user I'm not allowed to post URL links for spam purposes. My point is on the drivers "Entry" due to it being night time the vehicles headlights make the number plate completely unreadable in the "evidence" pictures.

Redx

just follow post #3 of the NEWBIES sticky thread and post it on here for critique by any available member

parking companies monitor time on site , not parking time , so they wont have anything about where the vehicle was "parked" - they dont care where the vehicle was

any and all failures need to be in your popla appeal , including failing POFA2012 requirements like NTK within 14 days etc (providing the driver was not identified)

if their anpr pictures are poor , say so

if their signage is bad or inadequate , say so (always include signage)

if they failed the BPA CoP , say so

query their landholder contract too

include any and ALL relevant legal arguments , they have to win on all points , you only have to win on one point only

you can post "dead" url links , but not "live" links

so change the http to hxxp , yes its really that simple

AJP01

Hi All,


I have now drafted my POPLA Appeal, please could someone read through and correct any errors i may have made or suggest further points i could have used.

*I am unable to make the document a PDF, would I be able to submit using a word document? or does anybody know a way I can convert a document without buying adobe.

I have used Sinage as my first defence point due to the chunky nature of the point, I have followed up with a point to say that PCS are unable to prove who was driver followed up by my point of poor APNR imaging and then finishing with landowner authority.


One question i do have is with regards to PCS failing POFA2012 by sending 15 days after the alleged contravention, Is this potentially a new point on its own or is it covered under point 2 of failing to prove the driver? could someone please advise.


draft:


Dear Sir or Madam,


Parking collection service PCN No. XXXXXX


I am writing to challenge a parking charge notice sent on the 20/09/2017 for an alleged parking offence at the Priory walk service yard, Queens street, Colchester on 05/09/2017. This parking charge notice has been issued by parking collection services.


To protect the driver, they have not been named.


My appeal as the registered keeper is as follows:
1. Inadequate Signage
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
3. Inadequate APNR imaging
4. No Evidence of Landowner authority.


1) 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:
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:


*Image of the Beavis case sinage*


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. 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:

AJP01

*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.

AJP01

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


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.''


3) Inadequate APNR Imaging
The operator in this case has provided an APNR image as evidence for an alleged parking contravention however as register keeper I contest that the image does not show any visible registration number of the vehicle. Below is an attached copy of the APNR image provided by the operator for the alleged parking offence:


*APNR Image*


As registered keeper I contest that the APNR images fail to show any visible number plate of the alleged vehicle. I also argue that the only evidence of a number plate is placed above the image and is not taken at the time of the alleged offence, this could have been added in at any stage. I argue that a number plate is not visible and thus simply placing any number plate above the image is not sufficient evidence of an offence.


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

end.