Comments on draft POPLA appeal please - Failure to pay for duration of stay

crossone

Thanks so much again Coupon-mad. I will let everyone know how I get on.

Jess158

Did Popla give you their decision Crossone?

crossone

Just had my POPLA appeal outcome through this afternoon - successful!

Thank you so much to all those who took the time and effort to advise me. Full text below for future reference:

Verification Code 4163477483

Decision: Successful
Assessor summary of operator case
The operator’s case is that the appellant failed to pay for parking.

Assessor summary of your case
The appellant’s case is that the parking charge is not compliant with the Protection of Freedoms Act (PoFA) 2012. The appellant stated that the operator has not shown that the individual it is pursuing is liable for the charge. The appellant said that the registered keeper of the vehicle did not enter into a contract with the operator. The appellant said the site did not have facility to pay by cash. The appellant said that the car park had no clear signage. It also failed to inform drivers how it uses the ANPR data.

Assessor supporting rational for decision
As the appellant has not declared the driver of the vehicle, I must consider whether the conditions of the Protection of Freedoms Act (PoFA) 2012 were met. The operator is pursuing the appellant as the Registered Keeper of the vehicle in this instance. As the operator has not identified the driver of the vehicle, the Parking Charge Notice (PCN) will need to comply with the regulations set out in section 9 of PoFA, 2012. The Notice to Keeper will need to comply with section 9 of PoFA, 2012 that states that the creditor must: 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; The PCN provided by the operator states “failure to pay the amount within 28 days of the issue date may result in civil; enforcement ltd (the creditor) forwarding your account to a debt recovery agency”. Further, I do not consider the PCN requested the driver details from the keeper. I am not satisfied that this Notice clearly informs the appellant that if the creditor does not know the name of the driver the operator can recover the costs from the keeper of the vehicle. I cannot conclude that the Notice to Keeper does meet the requirements of PoFA 2012. Therefore, I must allow the appeal.

Coupon-mad

Well done!

Have you posted a link to this thread & the name of PPC you beat, in the POPLA Decisions sticky?

Umkomaas

Which PPC?

Gemini

The PCN provided by the operator states “failure to pay the amount within 28 days of the issue date may result in civil; enforcement ltd (the creditor) forwarding your account to a debt recovery agency

I don’t expect Gemini will be too happy about that bit of lazy copy and paste by POPLA!

crossone

I don’t expect Gemini will be too happy about that bit of lazy copy and paste by POPLA!

Agreed - but they got the important bit "within 28 days" right. Actual content of PCN was as per my original post.

Have you posted a link to this thread & the name of PPC you beat, in the POPLA Decisions sticky?

Just added this to the sticky

crossone

As requested, final version of POPLA appeal as submitted:


Dear POPLA,

I write to you as the registered keeper of the above vehicle. I wish to appeal the £100 Parking Charge Notice to Keeper (PCN) issued by Gemini Parking Solutions for ‘Failure to Pay for the Duration of Stay.’!

I submit the reasons below to show that I am not liable for the parking charge and would be grateful if you would respectfully consider my appeal:-

1. Gemini Parking Solutions' Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012 (POFA).
2. Gemini Parking Solutions has not shown that the individual who it is pursuing is in fact liable for the charge.!
3. No contract was entered into between Gemini Parking Solutions and the Driver or Registered Keeper
4. No facility to make a cash payment
5. The car park had unclear, non-obvious, non-BPA-compliant signage, which failed to give adequate notice of the exorbitant purported parking charge and failed to transparently warn drivers of what the ANPR data would be used for, which breaches the BPA CoP and consumer protection law due to the inherent failure to indicate the 'commercial intent' of the cameras.


1. Gemini Parking Solutions' Parking Charge Notice To Keeper is not compliant with the Protection of Freedoms Act 2012 (POFA).

Whilst I am the registered keeper of the car, the driver has never been identified.

The PCN does not comply with the minimum requirements of paragraph 9 of schedule 4 of the Protection of Freedoms Act 2012 (POFA) and no liability for the keeper can therefore arise.

The provisions of POFA are not guidelines for operators to paraphrase at their discretion, but specific requirements laid down by primary legislation.

The burden of proof lies with the operator to demonstrate that it has issued the PCN correctly.

I refer to POPLA assessment and decision of 9 March 2017 involving Gemini Parking Solutions (verification code 4160317097) where the Assessor Ms Butler stated:
!
“For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. The operator has provided a copy of the Notice to Keeper sent. As the driver of the vehicle has not been identified, the Notice to Keeper will need to comply with section 9 of PoFA 2012. PoFA 2012 sets out to parking operators that: “2) The notice must – f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— The Notice to Keeper states “We now request this amount is paid using one of the payment methods described overleaf; If within 28 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle”. As such, I am not satisfied that the operator has met the minimum requirements of PoFA 2012 when outlining the period of 28 days beginning with the day after that on which the notice is given. I can only conclude that the Parking Charge Notice (PCN) was issued incorrectly. Accordingly, I must allow this appeal”
!
The wording in this PCN is identical to the wording in that assessment, which was found not to meet the minimum requirements of POFA.

So, this is a charge that could only be potentially enforced against a known driver.

2. Gemini Parking Solutions has not shown that the individual who it is pursuing is in fact 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, not by POPLA, nor the operator, nor even in court.!

I am the keeper throughout (as I am entitled to be), and there has been no admission regarding who was driving. It has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK. Only full compliance with Schedule 4 of the POFA (or evidence that a keeper was the driver) can cause a keeper appellant to be deemed by POPLA 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. Gemini Parking Solutions has failed to do this.

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.''

3. No contract was entered into between Gemini Parking Solutions and the Driver or Registered Keeper.

As Gemini Parking Solutions does not have proprietary interest in the land then I require them to 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 Gemini Parking Solutions 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).

Gemini Parking Solutions is required to produce evidence that it has the authority to form contracts with drivers on this land or to pursue charges. The signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Gemini Parking Solutions clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract.!

I contend that Gemini Parking Solutions merely holds a basic commercial licence to supply and maintain confusing signage and to issue 'tickets' as a deterrent to car park users.!

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

Furthermore, for the avoidance of doubt, a witness statement to the effect that a contract is or was in place will not be sufficient to provide the necessary detail of the contract terms. Such a witness statement would not comply with paragraph 7 of the BPA Code of Practice as the definition of the exact services provided by Gemini Parking Solutions would not be fully stated.!

It is not appropriate for a car park such as this to have such a limited amount of signs with such poorly displayed terms, putting the onus clearly on drivers to search carefully for where and how the terms are displayed. It is surely the responsibility of Gemini Parking Solutions to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require Gemini Parking Solutions to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park.

I request that Gemini Parking Solutions provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific detail including an agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Consumer Rights Act 2015.


4. No facility to make a cash payment

There is no facility to make a cash payment at this location. If an operator does not accept cash payment, no debt can accrue.

Permitting payment only by mobile phone amounts to indirect age discrimination contrary to the Equality Act 2010 and moreover is impossible in circumstances where the driver either does not have a mobile phone available or where the battery has died during the 3-hour free parking period, thereby frustrating any contract in existence (which is denied).


5. The car park had unclear, non-obvious, non-BPA-compliant signage, which failed to give adequate notice of the exorbitant purported parking charge and failed to transparently warn drivers of what the ANPR data would be used for, which breaches the BPA CoP and consumer protection law due to the inherent failure to indicate the 'commercial intent' of the cameras.


a) Unclear, non-obvious, non-BPA compliant signage which failed to give adequate notice of the exorbitant purported parking charge

The signs in this car park are not prominent, clear or legible from all parking spaces and as can clearly be seen from the image below, there is insufficient notice of the sum of the parking charge itself, which is hidden in the very smallest text, significantly smaller than the other content of the signage. The signage also uses barely visible yellow text against a white background.

The signs contain letters in very small writing that are above head height for the average person (this would be around 1.7 metres according to latest research for adults).!

There was no contract nor agreement on the 'parking charge' at all. 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. 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.

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

[image]

Gemini Parking Solutions’ signage, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court and swayed it into holding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, much of the wording, including that relating to the parking charge, is illegible, particularly given its small size. 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 the smallest print. The operator is put to strict proof that the parking charge features on all signs including at the entrance - it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

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.!

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 were 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.''

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

''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:!

''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 to be able to read the terms.!

Under Lord Denning's Red Hand Rule, the extortionate purported parking 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 BPA Code of Practice would require a parking charge and the terms to be displayed far more transparently, 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.

Contrary to these requirements, in this case the parking charge is hidden in the smallest print and is illegible.

The Beavis case signs not being similar to the signs in this car park at all, I submit that the persuasive case law is in fact Vine v London Borough of Waltham Forest [2000] EWCA Civ 106 where the driver who had not seen the terms was consequently NOT bound by them. This judgment is binding authority from the Court of Appeal 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.

As a POPLA assessor has said previously in adjudication:

‘Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the operator to demonstrate that the signs at the time and location in question were sufficiently clear.’ Gemini Parking Solutions have failed to do this.

The tiny lettering was not visible (readable) to be seen by any driver entering the car park. This is not mitigating circumstances but failure by Gemini Parking Solutions to ensure that the full terms included in their signs were to be seen accordingly. The BPA Code of Practice section 18, state that clear signage must be erected at each entrance and additional signage installed throughout the area. These requirements were not met and I demand strict proof that those signs are visible.

Furthermore, the landmark case of Beavis establishes that a parking charge will only be valid where signage is clear and the driver therefore able to be fully aware of any charges. Gemini Parking Solutions has not provided evidence that such signs, if present, were available throughout the car park and visible, from the area where the car was parked at the time of the event.

b) Failure to transparently warn drivers of what the ANPR data will be used for

The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the BPA CoP and consumer rights law due to inherent failure to indicate the 'commercial intent' of the cameras.!

Paragraph 21.1 of the British Parking Association Code of Practice (CoP) advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The CoP requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.!

The operator’s signs do not comply with these requirements because they failed to notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and consumer rights law. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside the car park.!

It is clear that the cameras are not for security but are there in order to calculate 'total stay'.!
In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.!In addition to the requirement for transparency in s68 of the Consumer Rights Act, s69 provides that, where a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.!

Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':!

Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—!
(a) the commercial practice omits material information,!
(b) the commercial practice hides material information,!
(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or!
(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,!
and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''!

It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park.!


I therefore respectfully request that POPLA uphold my appeal and cancel this PCN.

Yours faithfully