LPS - Parking Charge Notice - Stratford On Avon

Redx

I can only reiterate what I said

clearly it was a pay and display car park, so there must have been a means to pay for extra time, even if this meant buying another ticket

its a pay and display car park, the BEAVIS case was on a free car park, with nothing to pay up front and no means of paying for more time

the two are completely different !!!

they are nowhere near identical, not at all !!

surely you can see that ?

and if GRACE PERIODS apply , there should be a separate section about them , not be included in section 2)

and if you are talking about machine calibration, that should be in a separate section too

and you seem to be asking questions in section 2), whereas you should be pointing out the facts and waiting for their evidence pack later on , then rebutting them

Button_Moon

Yes I see now, sometimes you have to state the obvious for it to make scene with me

In regards to the machine calibration, If i'm not to ask questions do I need to simply state that there is no information displayed or evidently clear that the machines are calibrated and if they were, there has been no information sent to me proving so?

As for grace period, I don't know if this applies hence asking as a question in my letter. I guess this bit can tie in with calibration and ticket officer understanding that there was clear intent to buy a legit ticket but for the sake of 1 minute should they not have assumed or had a grace period or time tolerance. Ie were they just being anal and shafting someone for the sake of one minute.

Redx

if you want to make those legal points , do so

they can rebut them in their evidence pack

you can then provide your own rebuttal to their evidence pack

so if you believe those questions need to be answered, write paragraphs that make them prove their case , that is the point about a popla appeal , if in doubt - make them prove it

so dont ask questions, state that there is no proof and that proof should be given

make them prove their case, using as many hurdles for them to jump over as possible

POPLA are NOT going to ask questions nor answer your questions , its not their job

Button_Moon

Few added parts:

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

3) 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.

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

5) No evidence of calibrated machinery

6) No evidence of grace period


1) 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).
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.''

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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.!

Where a charge is aimed only at a driver then, of course, no other party 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.!

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) 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.

In the Beavis case, there were no upfront cost and no means of paying for more time. This case, by comparison the only option was to purchase a second ticket at full price to compensate for the 1 minute discrepancy in ticket "departure time". As the ticket was purchased in good faith that the "evening rate" applied and was met, there were no reasons to purchase a second ticket.

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

5) No evidence of calibrated machinery

The parking ticket was purchased just after at 16:00 with clear intent for "evening rate" of 16:00 to 08:00 hours. The physical printed ticket time shows a "departure time" of 17:59 hours and £2 fee paid, this means that the ticket was purchased at 15:59 hours.

There is no proof to show that the machine is calibrated to Greenwich Mean Time (GMT), and machine /LCD display/ printed ticket are of identical values time wise. Proof needs to be shown that on the day and time of the PCN, the machine that processed and printed the ticket was indeed calibrated.

6) No evidence of grace period

Under clause 13 of BPA Code of Practice there is a grace period for entering and leaving the car park. Whilst the ticket was purchased and therefore a contract formed, there still needs to be a grace period when walking from ticket machine to vehicle. The printed ticket shows the "departure time" 1 minute before the "evening rate", if it took 1 minute to walk to the car this should be incorporated into the grace period as part of the contract. It could be argued that the ticket officer should have factored the grace period into the ticket time when viewing the time stamp.

Button_Moon

I feel rude to bump this... Will submit tomorrow as Monday is the deadline and I'm away all weekend

Umkomaas

Button_Moon wrote: »

I feel rude to bump this... Will submit tomorrow as Monday is the deadline and I'm away all weekend

Appeal points 1-4 are fine.

I think I’m understanding what you’re trying to say in 5 from scanning over the rest of your thread. But don’t forget the POPLA assessor will have no other background details and will just have to assess what you’ve written in 5. I think you need to have a go at a producing a clearer picture for the assessor.

I’m more confused with 6. The driver has 2 Grace Periods available to them - read the BPA Code of Practice Clause 13 and work appeal point 6 around the contents of that.

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

Button_Moon

Thanks, I wasn't sure if the assessor has any background to the PCN.

Do I need to give a brief overview in this section or at the start why the ticket was issued to me and mention the timing difference - ie if I bought the ticket 1 minute later it would have put me into evening rate which is a singe fixed fee and would have meant no PCN.

I struggle to understand how to word this. I don't know if its simply better to just ignore 5 & 6 and keep it simple.

Button_Moon

I've just read section 13 in the BPA Code of Practice Clause, there is no point in being on my letter.

I've yet to receive an NTK too. PCN was dated 20/10/2017.

Button_Moon

would this read better?

Parking for Rother Street - Stratford upon Avon is 24 hours. Parking is £1 per hour with exception to an "evening charge" of £2 which applies for 16:00-08:00 hours.

The parking ticket was purchased just after at 16:00 at the sum of £2 (photo attached) with clear intent for "evening rate". The physical printed ticket time shows a "departure time" of 17:59 hours, this means that the ticket was purchased at 15:59 hours according to the ticket machine.

There is no proof to show that the machine is calibrated to Greenwich Mean Time (GMT), and machine /LCD display/ printed ticket are of identical values time wise. Proof needs to be shown that on the day and time of the PCN, the machine that processed and printed the ticket was indeed calibrated.

Umkomaas

Button_Moon wrote: »

would this read better?

Parking for Rother Street - Stratford upon Avon is 24 hours. Parking is £1 per hour with exception to an "evening charge" of £2 which applies for 16:00-08:00 hours.

The parking ticket was purchased just after at 16:00 at the sum of £2 (photo attached) with clear intent for "evening rate". The physical printed ticket time shows a "departure time" of 17:59 hours, this means that the ticket was purchased at 15:59 hours according to the ticket machine.

There is no proof to show that the machine is calibrated to Greenwich Mean Time (GMT), and machine /LCD display/ printed ticket are of identical values time wise. Proof needs to be shown that on the day and time of the PCN, the machine that processed and printed the ticket was indeed calibrated.

I would say something to the effect that clearly the machine is not in sync with your smartphone (which is accurately calibrated to UK time and which you checked at the time) and was used by you as the measured, accurate time in the day for the basis of purchasing an evening ticket.

The difference between 17:59 and 18:00 is so minimal, that there are significant questions about the accuracy of the PPCs machine’s time calibration to cause the assessor sufficient doubt, and should find for the appellant on the balance of probability. Or are they going to side with a PPC showing absolutely no inclination to recognise the marginality of the case?