POPLA appeal - response from operator

tomtt

Hi There,

I got a parking charge notice from Highview Parking at Dartford Retail park in August for overstaying the 2.5hrs by 24mins. Without knowing about this forum, I appealed to Highview giving my genuine reasons - was shopping with wife and two kids (I didn't specifically say that I was the driver), did £80 worth of shopping, had lunch there etc. But, my appeal was rejected.
I then came to know about this forum and appealed to POPLA using one of the templates that I found here. Highview was provided their response as to why they reject my appeal.
Could you kindly advise as what I can do now? I will post my appeal and their response separately.
Many Thanks
Tom

Redx

you go through their evidence pack and find any and all anomalies with signage , contract , POFA2012 , NTK errors , name of car park errors etc

see recent POPLA REBUTTALs that were approved and look at what they highlighted as flaws by their PPC

then sort out a draft of your own rebuttal

you have a week to get this back to popla by email

tomtt

My POPLA appeal details

Appeal re POPLA code: ********* vs HighView Parking
Parking Charge Notice No. – *********** Vehicle Registration Number – *********

As the registered keeper of the above vehicle, I wish to appeal the parking charge notice Highview Parking issued against it. I would like to have the parking charge notice cancelled based on the following grounds:
1) Keeper Liability not established - The Notice to Keeper is not compliant with the POFA 2012
2) Highview Parking has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.
3) No evidence of Landowner Authority - Highview Parking is put to strict proof of full compliance with the BPA Code of Practice
4) ANPR and BPA Code of Practice non-compliance
5) Unclear signage - no contract with driver
6) Grace period – The car was only 24 minutes over the limit

1) Keeper Liability not established
Although Schedule 4 of the Protection of Freedoms Act 2012 (POFA) potentially gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.
Highview Parking's Notice to Keeper fails to comply with Schedule 4 in two respects:
a) It fails to comply with Paragraph 9(2)(f)of the POFA as follows: ‘warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;’ As this is prescribed, mandatory wording under statute, it is clear that Highview Parking have decided not to exercise their rights under the POFA and can only pursue the driver.

b) It fails to comply with Paragraph 4(5) which states that ‘the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).’ In this instance, Highview Parking’s Notice to Keeper includes an additional ‘initial debt recovery charge’ of £40 if payment of the charge is not received within 28 days.
Consequently, Highview Parking has forfeited its right to recover any unpaid parking charges from myself, the keeper of the vehicle.

2) Highview Parking 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 Highview Parking 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) No evidence of Landowner Authority - Highview Parking is put to strict proof of full compliance with the BPA Code of Practice
As Highview Parking 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 Highview Parking 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

4) ANPR and BPA Code of Practice non-compliance
Highview Parking are in breach the British Parking Association’s Code of Practice relating to ANPR cameras and associated signage. The code states the following:
21.1) You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
The signs at Dartford Heath Retail Park fail to comply with the above clause. The sign does not state what the data captured by the ANPR cameras will be used for, or how long it will be stored. This is a clear violation of the BPA Code of Practice.
The code also states:
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must: • be registered with the Information Commissioner • keep to the Data Protection Act
• follow the DVLA requirements concerning the data • follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.
21.5 If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9).

I contend that Highview Parking have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether Highview Parking has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

5) 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.
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:
''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.''
''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:
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.

Coupon-mad

Why did you use 'no keeper liability' if you'd already outed the driver? Makes no sense.

What does Highview's evidence say about that?

If you lose this silly farce of a POPLA appeal due to blabbing about who was driving, then just ignore them.

tomtt

In my initial appeal to Highview, I had foolishly mentioned that I was there at the retail park along with the wife and two kids, but didn't say that i was the driver.
I therefore thought I could use keeper liability as the driver could be my wife as well:( Highview's evidence says that I stated in my appeal that I was a customer.
I will post the details of highview's evidence.

tomtt

Below is the Case summary posted by Highview. In addition they also posted the following:
- photos of the parking signs at the retail park
- signage plan at the retail park
- Original parking charge notice
- My original appeal to Highview and their response
- Registered keeper details and liability trail
- Witness statement from representative of landowner that highview is authorised

After reading their evidence, I can't really make out what grounds I have to continue to appeal - except maybe to reiterate that I never admitted that I was the driver? I would really appreciate your advise on this.

Section B: Case Summary and rules/conditions
Case Summary
In response to the PCN, Mr Thomas appealed stating that he was a customer at the time.
Rejecting his appeal, we advised that clear signs at the entrance of this site and throughout inform drivers of the terms and conditions that apply there, and customers are not exempt from this.
By parking his vehicle on the site Mr Thomas entered into a valid contract and agreed to abide by its terms and conditions. The ample signage displayed throughout the site advises the terms and conditions of use. One of the conditions is that there is a 2 and a half hour maximum stay. The signage advises that a Parking Charge Notice of £85 will be issued when allowing your vehicle to remain on site in excess of the maximum stay.
It is the driver’s responsibility to ensure they comply with the terms and conditions of the site. In this case, by allowing his vehicle to remain on site for 24 minutes in excess of the maximum stay, MrThomas breached those terms and conditions.
While we are willing to consider evidence of custom as part of the appeals process, Mr Thomas’s use of the site does not render the PCN invalid in any way as users of the site are required to adhere to the advertised free two and a half hour time limit, and agree to either leave the site within this time, or pay the £85 Parking Charge Notice if they remain on site after this time and use of the facilities on site does not exempt drivers from this.
We note that Mr Thomas has now appealed to yourselves on additional grounds which we contend should be disregarded as we have not been given the opportunity to consider these as part of the appeals process. Nevertheless we shall address these points below.
We can confirm that we have the authority to act on behalf of the landowner – please see signed witness statement provided in Section G that confirms this. The onus is on the appellant to provide evidence to support his claim that we do not – if the appellant genuinely believes that we do not have such authority, they should have gone to the BPA to obtain this information.
In Parking Eye Ltd v Beavis, it was found at County Court, Court of Appeal and Supreme Court level, that appealing a Parking Charge Notice on the basis that the amount is not a genuine pre-estimate of loss is not a successful defence in law.
In the Court of Appeal judgment, Sir Timothy Lloyd held that “for the law to prohibit a provision such as the overstaying charge, on the basis that it bears no relationship to the loss suffered…would fail to take account of the nature of the contract, with its gratuitous but valuable benefit of two hours’ free parking, and of the entirely legitimate reason for limiting that facility to a two hour period.”
The Judges considered whether a PCN could be invalidated on the grounds that the overstay was a genuine mistake, that the PCN is a penalty, that the Operator has no commercial interest or should charge a more modest amount and that the charge was a deterrent to the motorist. In the Court of Appeal judgment, these legal arguments were analysed and it was unanimously agreed that not one of them presented a legally valid basis for invalidating the charge.
Instead, it was found that the provision of a free parking facility on a retail park is a useful service for motorists and shopkeepers alike. In the Judges’ estimation, a driver who overstays the allowed time period inconveniences the former group and causes a material loss to the latter.
It was found that, in order to facilitate a turnover of visitors, the Terms and Conditions of a car park should provide a “disincentive to drivers.” The imposition of such charges was deemed to be “not extravagant or unconscionable and the contract was therefore enforceable at common law.”
The Court of Appeal also explained that municipal parking charges are identical in nature and that only this method of enforcement, rather than a graduated system of charges where motorists pay a fee proportionate to the length of the time they have overstayed, can deter widespread abuse of car parks.
The Supreme Court dismissed the appeal by a majority of six to one, declaring that the charge does not contravene the penalty rule or the Unfair Terms in Consumer Contracts Regulations 1999 and reiterating the conclusions of the Court of Appeal.
We note that the judgments passed down by the County Court, Court of Appeal and Supreme Court have provided a clear endorsement of Operators’ rights to issue a PCN and established a legal precedent rebutting drivers who appeal a PCN on grounds that the charge does not reflect a genuine pre-estimate of loss.
We therefore seek to rely on the authority of the higher Courts and would submit that the appellant in this case should not be afforded a defence in law that has been rejected by the judiciary.
We can confirm the signage is displayed in compliance with all relevant laws and regulations –
please see images and photographs provided in Section F which support this.
Our position remains that we have received no mitigating circumstances or evidence for which we should cancel the PCN. We maintain Mr Thomas entered into a valid contract and should pay the valid parking charges as per the signage on the site.

Coupon-mad

I therefore thought I could use keeper liability as the driver could be my wife as well Highview's evidence says that I stated in my appeal that I was a customer.

You are still right, they are wrong. Point that out to POPLA, a customer is not an admitted driver.

Show us a few bullet points you plan to use to rebut this.

Umkomaas

By parking his vehicle on the site Mr Thomas entered into a valid contract and agreed to abide by its terms and conditions.

If there has been no prior identification of the driver you must rebut this (but check what was said in your initial appeal). Also being a customer does not equal being the driver.

We note that Mr Thomas has now appealed to yourselves on additional grounds which we contend should be disregarded as we have not been given the opportunity to consider these as part of the appeals process

There is nothing that precludes you raising points in the POPLA appeal that were not previously included in the initial appeal to the PPC. Make a point of that.

In Parking Eye Ltd v Beavis, it was found at County Court, Court of Appeal and Supreme Court level, that appealing a Parking Charge Notice on the basis that the amount is not a genuine pre-estimate of loss is not a successful defence in law.

I can’t see in your POPLA appeal above you arguing ‘not a GPEOL’, - did you? If you didn’t, you have to ask yourself why HV has included this. So you have to rebut this, argue that HV seems to have tagged on a totally unrelated point, suggesting they have merely used a copy and paste from some other motorist’s appeal, rendering their evidence unreliable, it should be ignored and the appeal upheld on the basis of the unreliability of PPC evidence.

tomtt

Hi All,

Please find the following points that I have come up with based on your kind inputs. Could you please advise if the following looks good for my case?

To Whomsover it may concern,
- In Highview’s case representation, they have claimed that I have admitted to being the customer at that time.
I was indeed a customer at that time, but I have not said that I was the driver at that time. Being a customer does not mean that I was the driver.
- Highview has claimed that by parking my vehicle on the site, I entered into a valid contract.
I rebut this point as being a customer does not mean that I was the driver.
- Highview has claimed that as I have now appealed to POPLA on additional grounds which was not given to Highview in my appeal to them, they should be disregarded.
I believe that there is nothing that precludes me raising points in the POPLA appeal that were not previously included in the initial appeal.
- Highview has claimed that appealing a Parking Charge Notice on the basis that the amount is not a genuine pre-estimate of loss is not a successful defence in law.
Please note that I did not raise the point of 'not a genuine pre-estimate of loss' in my appeal. Highview seems to have tagged on a totally unrelated point, as suggesting they have merely used a copy and paste from some other motorist’s appeal, rendering their evidence unreliable, it should be ignored and the appeal upheld on the basis of the unreliability of their evidence.
- ANPR and BPA Code of Practice non-compliance - In my appeal to POPLA, I have raised the point that Highview Parking are in breach of the British Parking Association’s Code of Practice relating to ANPR cameras and associated signage, as the signs at the retail park does not state what the data captured by the ANPR cameras will be used for, or how long it will be stored. Highview has failed to provide any evidence on this point, again as suggesting they have merely used a copy and paste from some other motorist’s appeal, rendering their evidence unreliable, it should be ignored and the appeal upheld on the basis of the unreliability of their evidence.

Umkomaas

Looks good to me. Try to format it better with some line spacing and bullet marks against each point that you are making, so it doesn’t just become a wall of text that an assessor might just skim read and fail to pick up key points.

If there are key points (like a customer isn’t necessarily the driver, HV stating that you should not be able add points different to your initial appeal, and the GPEOL copy and paste) I’d put the text relating to these in bold.

Keep us informed how it goes.

Coupon-mad

Most important, usually, are points reiterating no keeper liability and a point pulling apart their 'evidence' about landowner authority (look at the date of contract, and signatories).